1. In application P2493/2019 the decision of the responsible authority is set aside.
2. Planning permit P21457.01 is amended and an amended permit is directed to be issued for the land at 9-11 International Drive, Westmeadows. The permit is amended as follows.
3. Plans endorsed under the permit are amended and the responsible authority is directed to endorse amended plans showing:

(a) The erection and display of a major promotion electronic pole sign, being a second display face to the southern side of an existing major promotion sign as depicted in the plans titled Proposed Major Promotion Sign - Outbound, 9-11 International Drive Westmeadows, prepared by Madin Lyons, for GM Billboards, dated 16/5/18, drawing no. 18061 tp 1 of 1, revision A.

Mr Sean McArdle of counsel, instructed by Best Hooper Solicitors.

• Mr R Shamier, lighting engineer
• Ms C Dunstan, traffic engineer

It is proposed to erect and display a second display face to the southern side of an existing major promotion sign. The proposed second display area will be identical in area to the existing sign (14.256m 4.75m with an area of 67.7 square metres).

The proposed sign will have a V shape using the current base pole. Each sign display is directed to vehicles travelling in opposite directions along the Tullamarine Freeway.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to amend a permit.

Clause 34.02: Commercial 2 Zone. Signs in this zone are in Category 1 of Clause 52.05 - Commercial Areas.

Clause 52.05-11: A permit is required to construct or put up for display a sign in Section 2.

The land is located at the end of International Drive with street frontages to Tullamarine Freeway and Mickleham Road as well as International Drive.

The site has a frontage of 424.61 metres to the Tullamarine Freeway (no vehicular access), frontage to Mickleham Road of 94.04 metres (no vehicular access) and a frontage of 26 metres to International Drive (vehicular access) with an overall site area of 5.566 hectares.

The site is developed with commercial buildings and associated signage. The site is developed with an existing major promotion electronic pole sign located in the north west corner of the site, with a sign face to the north, issued under P21457 on 11 December 2018.

1. This is an application to review the decision of the responsible authority to refuse to amend a permit (P21457 issued on 11 December 2018) to allow the erection of a second display to an existing electronic, major promotion sign at 9-11 International Drive, Westmeadows.
2. The Council's grounds of refusal are based on an objection to the application submitted by VicRoads (now Transport for Victoria - TfV) which is a determining referral authority under Clause 66.03 of the planning scheme with respect to applications to construct or put up for display an animated or electronic sign within 60 metres of a freeway or arterial road declared under the Road Management Act 2004.
3. The grounds of refusal are:

The sign will compromise the operational efficiency of the road and poses an unacceptable road safety risk because it:

(a) Will dazzle or distract drivers due to its size, design or colouring, or being illuminated, reflective or flashing.

(b) The proposed sign location will be in competition for attention with existing road related instruction signs.

1. Prior to the hearing TfV amended its grounds of objection as follows:

The proposed sign will compromise the operational efficiency of the road and will pose an unacceptable road safety risk;

It will dazzle or distract drivers due to its size, design, colouring, or being illuminated.

The proposed sign is in proximity to existing road instruction signs.

The proposed sign will impact on the ability to install road instruction signs at this location in the future.

1. The Council has assessed the application having regard to relevant planning and urban design considerations and is not opposed to amending the permit as proposed. The refusal of the application is therefore confined to the issues raised by the TfV in its objection and amended grounds of objection[2].
2. The key issues in this case are therefore:
   • Will the proposed sign compromise the operational efficiency of the road and pose an unacceptable road safety risk because of its size, design, colouring, and illumination?
   • Will the proposed sign impact on the ability to install road instruction signs at this location in the future?
3. The proposal is acceptable with respect to each of the matters. My conclusion is informed by the comprehensive expert analysis presented to me by the applicant, which addressed the specific concerns raised in the objection to the application, and also provided an analysis of the research conducted more broadly into the road safety impacts of electronic billboards This analysis is to be contrasted with the TfV submission which was broad brush in approach and lacked rigour in its assessment of the proposal.
4. My reasons for amending the permit are set out below.

GENERAL PRINCIPLES FOR CONSIDERING APPLICATIONS OF THIS TYPE

1. Prior to addressing the specific issues outlined above, it is appropriate that I comment on the approach to be adopted in making decisions about the acceptability of proposals of this type.
2. These comments are necessary because the applicant and TfV adopted diametrically opposite approaches in their submissions and in the presentation of evidence.
3. The TfV submission provided a broad-brush summary of legislative, policy and planning scheme provisions relating to advertising signs and road safety. The submission emphasised the importance of road safety when considering applications for advertising signs. The submission referred to the decision guideline under Clause 52.05 of the planning scheme which states that any sign that could dazzle or distract drivers due to its size, design or colouring or because of its location where particular driver concentration is required is a safety hazard. The TfV submits this sign qualifies as a safety hazard because it meets the criteria specified in Clause 52.05-8, i.e. it could dazzle or distract drivers. The submission concludes that the permit should not therefore be amended.
4. The importance of operational efficiency and road safety is not in dispute. These principles underpin much of the planning scheme's provisions for considering the impact of advertising signs, especially major promotion and electronic signs. In circumstances where a sign could be a safety hazard in line with the criteria specified in Clause 52.05-8, an analysis must be carried out to determine whether the proposed sign will actually be a safety hazard, rather than having the potential to be a hazard.
5. A submission to the Tribunal to the effect that a sign could be a hazard and should therefore be refused, can have little prospect of success, in the absence of expert analysis of the real impact of the sign. This is especially the case where, in Mr McCardle's words, there has emerged over recent years an analytical framework and field of expert knowledge that can be applied to the assessment of these issues[3].
6. The approach outlined above has been adopted and consistently applied by the Tribunal over many years. Mr McCardle referred me to several relevant decisions which have emphasised the importance of the safety implications of each sign being assessed on their particular facts and circumstances and in the context of the established and emerging analytical framework for considering such matters[4].

WILL THE PROPOSED SIGN COMPROMISE THE OPERATIONAL EFFICIENCY OF THE ROAD AND POSE AN UNACCEPTABLE ROAD SAFETY RISK BECAUSE OF ITS SIZE, DESIGN, COLOURING, AND ILLUMINATION?

1. TfV emphasises in its submission the proposed sign's locational characteristics and in particular its proximity to two existing freeway signs. These existing signs are a large, green roadside directional sign outlining Melbourne Airport exits located in the outbound road verge almost opposite the proposed electronic sign, and an overhead Variable Message Sign (VMS) located approximately 55 metres ahead of the proposed electronic sign.
2. TfV submits that because of these locational features, the proposed sign constitutes a safety hazard that could distract drivers because:
   • At 14.265m wide by 4.755m high and a clearance of 6.245m from the ground, it is a very large sign that is purposefully designed to attract the attention of drivers heading north-west along the Tullamarine Freeway.
   • The proposed sign is located at a complex road traffic situation which requires concentration from drivers, more so than typical urban freeway situations.
   • Glances away from the road totalling more than two seconds increases the risk of a crash or near-crash instances[5]. It should not be necessary to establish that the proposed signs will distract drivers. It should be enough that the sign could distract drivers.
   • The effectiveness of the existing green directional sign located on the road verge for the outbound carriageway will be adversely affected. This directional sign currently provides important information for drivers visiting the Airport and it is therefore important that drivers are not distracted in any way as missing the correct exit will delay their arrival at the airport terminal and may lead to irresponsible driver behaviour.
3. A specific area of concern raised by the TfV is that proposed sign location will be in competition for attention with the existing road instruction signs. It is also stated that the sign would be inviting drivers to look across to their right, while still trying to take in the large green destination sign content on the left, as well as any messaging on the existing electronic overhead gantry over the roadway.
4. As I have stated above Ms Dunstan provided me with a thorough and detailed analysis of relevant research into the road safety implications of electronic billboards to provide a contextual background for her detailed analysis of this proposed sign.
5. In contrast to the broad-brush submissions presented by the TfV, Ms Dunstan's evidence is comprehensive and applies appropriate rigour to the application of traffic engineering principles to the assessment of this proposal.
6. Ms Dunstan's evidence addressed matters including the sign legibility and driving task from each of the approaches to the proposed sign, and at varying distances to the sign and within nominated driver view cones.
7. The evidence also included an analysis of the sign against each of the decision guidelines of Clause 52.05-8 which qualify the sign as a safety hazard. In relation to the specific guidelines relied on by the TfV, Ms Dunstan conclusions are as follows:
   1. In relation to the guideline at Clause 52.05-8 that a sign is a safety hazard if it obstructs a driver's view of a traffic control device, or is likely to create a confusing or dominating background which might reduce the clarity or effectiveness of a traffic control device:

The sign passes behind an overhead gantry while driving on the main carriageway of the Tullamarine Freeway, however as the sign is almost completely obscured by vegetation and also passing behind the side of the gantry with the signage facing inbound drivers, there will be no impact on outbound drivers.

Clause 52.05-9 of the Planning Scheme imposes mandatory conditions on any planning permit that minimises the chance of an advertising sign being mistaken for a traffic control device[6].

1. In relation to the guideline at Clause 52.05-8 that a sign is a safety hazard if it is at a location where particular concentration is required, such as a high pedestrian volume intersection:

The concentration needs of drivers are discussed extensively in Section 5.3. The proposed sign is expected to be legible at a distance of approximately 470m (if visible) for outbound traffic. Before this point drivers are unlikely to pay attention to the sign as they will not be able to read it.

The main driving task for drivers along this approach is either merging from the on-ramp at Mickleham Road, or monitoring merging drivers on the left hand lane of the main carriageway.

Drivers will undertake this merge after the proposed sign has passed outside drivers' 10° cone of reading vision. Accordingly, drivers are expected to be concentrating on the driving task at hand and will only observe the sign if they have spare attention capacity to devote to the sign.

Drivers on the main carriageway will be aware of the upcoming merge before the sign becomes fully visible, allowing for enough time to prepare for merging traffic onto the freeway[7]

1. In relation to the to the guideline at Clause 52.05-8 that a sign is a safety hazard if it could dazzle or distract drivers due to its size, design or colouring, or it being illuminated, reflective, animated or flashing:

The proposal is for an electronic billboard displaying static images. It will not be reflective, animated or flashing. The sign proposes a dwell time of 30 seconds per advertisement and an instantaneous transition time. The level of illumination, design, colour and content of the electronic billboard can appropriately be controlled by permit conditions.

As discussed at Section 5.3, there is a 19% and 49% chance that drivers will observe an image change of the digital sign during freeflow conditions, depending on whether they are driving on the main carriageway or on-ramp, respectively. This accords with the recommendations of the Austroads Research Report 20137 to minimise image changes[8].

1. Importantly, in relation to the other relevant decision guidelines at Clause 52.05-8:
   • The sign does not obstruct a driver's line of sight at an intersection, curve or point of egress from an adjacent property.
   • Will not be mistaken for a traffic control device, because it does not contain red, green or yellow lighting, or has red circles, octagons, crosses, triangles or arrows.
   • Does not requires close study from a moving or stationary vehicle in a location where the vehicle would be unprotected from passing traffic.
   • Does not invites drivers to turn where there is fast moving traffic or the sign is so close to the turning point that there is no time to signal and turn safely.
   • Is not within 100 metres of a rural railway crossing.
   • Does not have insufficient clearance from vehicles on the carriageway.
   • Does not mislead drivers or cannot be mistaken as an instruction to drivers.
2. Ms Dunstan's evidence also included a Road Safety Review involving an analysis of State Road Accident Records (Crashstats) in the vicinity of the site for the past 5 years. The review indicates that there have been 8 casualty crashes reported within the review area. Ms Dunstan's review of the crash analysis led her to relevantly conclude:

Only 5 crashes occurred in a location where the sign was visible, with 4 of these crashes occurring before the sign was within the legible range of 470m and 1 occurring at a distance within the legible range but with the sign being heavily obscured by vegetation.

Accordingly, I am satisfied that the road network on the approach to the proposed sign is not inherently unsafe[9]

1. TfV advised that it had separately verified Ms Dunstan's Crashstats and accepts the analysis.
2. Ms Dunstan's undisputed conclusions are as follows:

a) Traffic engineering and road safety research exists to demonstrate the following with respect to static electronic billboards:

(i) traffic signs are not conspicuous to drivers until they are within approximately 10 degrees of the driver's line of sight,

(ii) drivers have a 30 to 50% spare attention capacity, which they devote to objects not related to the driving task, including advertising or billboard signs,

(iii) drivers have an average reaction time to stimulus of 2.5 seconds,

(iv) street level advertisements attracted more attention than raised advertisements,

(v) eyes-off-road durations greater than 2 seconds significantly increased individual near-crash/crash risk, whereas less than 2 seconds was comparable to normal driving,

(vi) outdoor advertising is intended to be a 'glance medium' with only short glances being required to read and interpret the message, which would not have a significant impact on road safety,

(vii) there are comparable statistics between electronic billboards and conventional billboards for a number of factors such as mean number of glances, glance length, percent eyes-on-road, lane deviation and speed deviation.

(viii) no significant driver distraction effect could be ascertained for electronic billboards, and

(ix) no effect on crashes could be determined as a result of installing electronic billboards in new sites or in sites where conventional billboards operated previously.

b) The proposed electronic billboard will not present a road safety hazard particularly as drivers have the ability to shed any unnecessary information when they have an information overload, to focus on what is judged to be more important.

c) The proposed electronic billboard will not impact a driver's ability to view existing directional signage, nor the overhead VMS board,

d) The proposed electronic billboard will not have any material impact on a driver's ability to navigate to the appropriate off-ramp relating to Melbourne Airport,

f) The location of the proposed sign will be in an elevated position and will not obstruct a driver's line of sight to any traffic control device or traffic sign, or create a confusing or dominating background which might otherwise reduce the clarity or effectiveness of a traffic control device.

g) The proposed dwell time of 30 seconds per image and instantaneous transition time are consistent with current practice.

h) During free-flowing conditions, drivers would not have the opportunity to read more than 1-2 images.

i) During times of traffic congestion and slower vehicle speeds, I am satisfied that drivers viewing additional images is acceptable given slower vehicle speeds and the lack of critical driving tasks within the vicinity of the proposed sign.

j) The proposed sign satisfies the decision guidelines set out in Clause 52.05-8 (and Department of Transport's Ten Point Safety Checklist) assuming that appropriate controls are in place to govern the promotional material which can be displayed on the electronic billboard to ensure that the advertisement displayed is not reflective, animated or flashing, and does not provide an instruction which could dazzle, distract or confuse motorists.

k) There are no traffic engineering reasons why a permit for the erection and display of a single-sided major promotional sign at 9-11 International Drive, Westmeadows, should not be granted, subject to appropriate conditions[10].

1. Ms Dunstan's evidence was supported by dash cam videos depicting a vehicle approaching the review site from the Tullamarine Freeway and Mickelham Road on ramp.
2. The dash cam videos are a valuable and useful method of testing the validity of the analysis undertaken by Ms Dunstan.
3. After the hearing I separately followed the routes depicted in the dash cam videos, and I have concluded that they represent a realistic representation of the images included in Ms Dunstan's evidence.
4. I have also been assisted by the evidence of Mr Shamier who reviewed the lighting impact of the proposed outbound facing digital signage.
5. Mr Shamier concluded that:
   • The amenity of residential properties would not be detrimentally affected by obtrusive light (spill light) from the proposed signage (as defined in AS4282:2019 Control of the Obtrusive Effects of Outdoor Lighting).
   • The safety of road users would not be detrimentally affected by disability glare from the proposed signage (as defined within the scope of this report and in AS4282:2019 Control of the Obtrusive Effects of Outdoor Lighting).
   • The proposed signage complies with the maximum veiling luminance of 0.25 cd/m2 as described in the VicRoads Permit Conditions and the VicRoads Advertising Policy for Advertising On, Over and Adjacent to VicRoads declared Road Reserves [11].
6. The existing permit contains a condition imposed by Melbourne Airport to the effect that the signage must not exceed the suggested 20 cd maximum luminous intensity at three degrees above horizontal, so as to prevent potential visual distraction to pilots.
7. Mr Shamier assessed the proposed sign against that requirement and against the relevant CASA standards. Mr Shamier's evidence demonstrates the permit condition is met by the proposal and the maximum luminous intensity is less than that recommended by the CASA Manual of Standards[12].

1. During the hearing reference was made to a permit issued for an electronic major promotion sign (no. P22379 issued on 7 October 2020) at 31-69 Western Avenue Westmeadows, a site located about 270m to the north of the location of the proposed sign on the review site.
2. Upon being made aware of the permit, Ms Dunstan commented that the separation distance between it and the proposed sign is significant and would not pose any operational or safety risk.
3. I issued an Order directing the Council to provide me and the parties with details of the permit. The parties were provided with the opportunity to make written comments about the implications (if any) of the existence of that permit[13].
4. TfV commented that it had not objected to the permit for the sign at 31-69 Western Avenue Westmeadows because it was satisfied that it would not distract drivers' attention away from existing directional and instructional signage on the Freeway. It further commented that it typically seeks a 500m separation between major promotion signs.
5. The applicant commented that:
   • TfV was aware of the two sign applications at all material times. Proximity of the signs was not one of its grounds raised at or before the hearing.
   • TfV's typical preferred spacing is of no probative value to this specific proposal.
   • The Applicant continues to rely on Ms Dunstan's expert evidence given at the hearing concerning the acceptability of the spacing between the two signs.
6. My inspection of the review site which also included the site of the approved sign at Western Avenue, confirms that the context of that site differs from the review site. It is unsurprising that TfV did not object to that sign.
7. I agree with Ms Dunstan that the spacing between the signs is sufficient to ensure that the operational efficiency and safety of the Freeway is not compromised to any significant degree.

WILL THE PROPOSED SIGN IMPACT ON THE ABILITY TO INSTALL ROAD INSTRUCTION SIGNS AT THIS LOCATION IN THE FUTURE?

1. TfV raises concern about the proposed sign's impact on its plans for the provision of access and associated signage to the third airport exit as part of the T4 Express Link.
2. Ms Dunstan provided the following description of the proposed road works associated with Terminal 4 (T4):

Melbourne Airport has recently commenced construction on Stage 1 works in regards to the 'T4 Express Elevated Road' project3, which relates to the construction of an elevated loop road network, which will separate public traffic from commercial transport operators and provide a new off-ramp connection from the Tullamarine Freeway to Terminal 4 (T4).

The project aims to boost capacity of the existing landside road system, as travel demands at Melbourne Airport are expected to increase significantly to 2038.

• This stage relates to the provision of a new road connection from the Tullamarine Freeway to the existing T4 ground transport hub elevated road.

• Construction of a one-way elevated road, connecting the existing T4 ground transport hub elevated road and a reconfigured T123 ground transport hub, allowing intersection-free access to all terminal precincts,

• An elevated connection from the reconfigured T123 ground transport hub directly into Departure Drive (for drop-off traffic)[14].

1. The exit to the T4 Express Link is about 1.15km past the location of the proposed sign. It is anticipated that the existing exit arrangement will be re-configured to account for the new off-ramp in approximately the same location as the start of the existing off-ramp.
2. Ms Dunstan concluded in relation to this matter that:

The approved T4 Express Link does not add any elements of extra complexity to this road environment and there is more than sufficient opportunities to undertake any vehicle movements to reach the desired destination, all well beyond the location of the proposed electronic billboard[15].

1. I agree with Ms Dunstan's assessment because the distance beyond the proposed sign and the approved sign is such that a driver's ability to navigate to the off-ramp is unlikely to be affected.

1. Having regard to the above, I am satisfied that the proposal is acceptable and will not compromise the operational efficiency of the road and pose an unacceptable road safety risk.
2. For the reasons given above, the decision of the responsible authority is set aside.
3. The permit is amended.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] I agree with the Council's assessment of the application. The review site's commercial/industrial context, the zoning of the land and the consequent inclusion of the land in category 1 of Clause 52.05 - Commercial Areas are important considerations in my assessment of the proposal. The purpose of category 1 is To provide for identification and promotion signs and signs that add vitality and colour to commercial areas. Decision guidelines for major promotion signs under Clause 52.08-5 includes encouragement for major promotion signs in commercial and industrial locations in a manner that complements or enhances the character of the area, and discourages them along forest and tourist roads, scenic routes or landscaped sections of freeways. The proposal demonstrates consistency with objectives of the Council's local policy at Clause 22.09 because its size and height is compatible with the scale of the site, the existing sign on the land, the surrounding streetscape/landscape character and the size and nature of other signs in the area. The pole sign is not to be erected so as to overhang any part of a road reserve.

[3] Ms Dunstan in her evidence provided a comprehensive summary of relevant available road safety research concerning static and electronic billboards, including roadside signage and

advertising, the relationship between advertising signs and accident statistics, the relationship

between driver performance and billboards and billboard design recommendations. The summary of that research which concludes that electronic billboards are not inherently dangerous, is included in section 5 of Ms Dunstan's witness statement, while the detailed findings are presented in Appendix D. Ms Dunstan's evidence was not disputed by contrary expert evidence.

[4] See for example Falvo Investments Pty Ltd v Hobsons Bay CC [2015] VCAT 1143,

Drive by Developments Pty Ltd v Kingston CC [2016] VCAT 473.

[5]The submission references a Towards Zero strategy and broader State government objectives to reduce the road toll to 200 per annum by 2020.

[6] C Dunstan witness statement page 41.

[11] Witness statement of R Shamier page 9

[13] The Council provided copies of the permit, the endorsed plans, the officers report assessing the application and TfV's response to the referral of the application. TfV did not object to the application subject to the inclusion of permit conditions.

[14] C Dunstan witness statement page 55.