29 March 2022
This year is a year of elections in Australia, with the recent election in South Australia, the federal election (most likely) in May and the Victorian state election in November.
The lead-up to an election is characterised by campaigning, which is regulated by all levels of government, including local governments via the enforcement of planning schemes. Recently, how planning schemes regulate political yard signs has been a source of contention after Bayside City Council (Council) released a statement that political yard signs for the federal election require planning permits under the local planning scheme.
The Supreme Court of Victoria recently held in Badger v Bayside City Council  VSC 140 (Badger v Bayside City Council) that the planning scheme allows individuals to display one political yard sign without a permit for up to three months or up to 14 days after the election, whichever is sooner, regardless of whether the precise date of the election has been announced. Because the case involved the general signage provisions under the planning scheme, which apply under all Victorian planning schemes, the Court's findings apply not only to Bayside but to all councils across the state.
In the case of Badger v Bayside City Council, the relevant signage was a typical political yard sign of approximately 1 by 1.4 metres in size, made of corflute, typically erected using cable ties to promote a candidate for election. The sign fell neatly within the definition of a “promotion sign” under clause 73.02 of the planning scheme, being –
“A sign of less than 18 square metres that promotes goods, services, an event or any other matter, whether or not provided, undertaken or sold or for hire on the land or in the building on which the sign is sited.”
As a promotion sign, the broader signage regulations of clause 52.05 of the planning scheme were triggered. Clause 52.05 states that promotion signs require permits in high-amenity areas. However, there are exceptions. The main argument in Badger v Bayside City Council turned on clause 52.05-10, which provides that a permit is not required to construct or put up for display a sign where –
“A sign with a display area not exceeding 5 square metres publicising a local educational, cultural, political, religious, social or recreational event not held for commercial purposes. Only one sign may be displayed on the land, it must not be an animated or internally illuminated sign and it must not be displayed longer than 14 days after the event is held or 3 months, whichever is sooner. A sign publicising a local political event may include information about a candidate for an election.”
Council contended that the political yard sign in question did not fall within the above exemption because there was no ‘event’, as the precise date of the election had not yet been called. Council’s argument therefore interpreted clause 52.05-10 to only apply on occasions where the event is definitely occurring within three months of when the sign is first displayed.
The Court held that the upcoming federal election was an event within the meaning of clause 52.05-10, notwithstanding the fact that an election date had not yet been called. The Court concluded that “the election is plainly an anticipated event being publicised by the sign”, finding that Council’s argument over the meaning of event “extended beyond the text of the clause.”
Council’s argument was rejected because nothing in clause 52.05-10 confines an “event” to something that occurs in a particular time and place. Therefore, the time limit starts from when the sign is first displayed and continues for three months or until 14 days after the election, whichever comes first. After this time, the political yard sign would no longer fall within the clause 52.05-10 exception and would require a planning permit.
The Court was asked to consider whether requiring planning permits for political yard signs as required by clause 52.05 would breach the constitutional implied freedom of political communication. However, as the yard sign in this matter was permitted without a permit, there was no live dispute in this regard. Nevertheless, the Court provided a “tentative view” that political yard signs could be excluded from clause 52.05-10 and regulated separately to avoid any potential infringement of the implied freedom, but noted that this is “an analysis that must wait for another day.”
In Badger v Bayside City Council, the Court overruled the Council’s statement that political yard signs require a permit where an upcoming election is not declared. In its reasoning, the Court applied the plain words of the planning scheme, a reminder of the importance of statutory construction based on the text.
If the federal election is held after May and political yard signs remain displayed for over three months, the Court will likely be asked to revisit whether planning schemes infringe the implied constitutional rights of political communication.
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Authors: Joseph Monaghan, Christopher Watt & Jacob Atkinson
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.