1 The sign as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

2 All signs must be constructed and maintained to the satisfaction of the Responsible Authority.

3 The sign must not be illuminated by external lights except with the written consent of the Responsible Authority.

5 The intensity of the light in the sign must be limited so as to not cause glare or distraction to motorists or other persons or loss of amenity in the surrounding area to the satisfaction of the responsible authority.

6 This permit, as it relates to signage expires 25 years from the date of this permit.

Mr M Dreyfus SC of Counsel instructed by Amanda Johns, Solicitor

1 Octopus Media Pty Ltd are seeking review of the decision of the Port Phillip City Council to refuse to grant a permit for the erection and display on a building at 8-12 Punt Road, Windsor of a major promotional sign.

2 The Responsible Authority refused the application on the following grounds:

1 The proposal does not comply with City of Port Phillip's Outdoor Advertising Policy.

2 The proposal does not comply with Clause 52.06, Signage Policy of the Port Phillip Planning Scheme.

3 Vic Roads, the views of which were sought under Clause 36.04-3, do not support the proposal.

3 Vic Roads indicated by letter dated 5 August 2005 they objected to the granting of a permit on the following grounds:

1 The proposed signage will be detrimental to the levels of both safety and amenity of the VicRoads Arterial Road for the following reasons:

a) The proposed signage is at a location where particular concentration is required;

b) The proposed signage could dazzle or distract drivers due to its size, design or colouring and it being illuminated, reflective animated and flashing.

c) The sign requires close study from a slow moving or stationary vehicle in a location where the vehicle is unprotected from passing traffic.

4 Amended plans were substituted as the plans the subject of the application for permit and application for review. The plans show the sign to be reduced in size having a total area of 42.06m². The sign is to replace an existing major promotion sign of a similar size.

5 The building on which the sign is to be located has a frontage to Punt Road and is situated between Nelson Street to the north and Wellington Street to the south. It forms part of St Kilda Junction which in traffic terms is one of the busiest multi-level interchanges in Melbourne with the intersection of Dandenong Road, Queens Road, St Kilda Road, Fitzroy Street and Barkly Street.

6 The proposed sign is to be electronically animated (LED). That part of the sign that is to be animated is to be 34.4m² (7.68m x 4.48m). It is to be mounted to the parapet of the building and project 2.5m above the line of the building and 800mm forward of the building line.

7 The sign is to display electronic messages including advertising products, services and events but not 'live broadcasts'. The images will be moving and will change approximately every 10 - 15 seconds. The message displayed will 'build' for approximately 10 seconds with the completed message being displayed for another 5 seconds. The sign is to operate 24 hours a day, seven days a week and is to contain an automatic night mode which reduces the light output from dusk to dawn.

8 St Kilda Junction is described as a visually diverse area that contains multi-level buildings, large major promotion signs, business signs, road infrastructure, a centralised island of tall trees and an open parkland area to the west.

9 The site is within the Business 2 zone under the Port Phillip Planning Scheme. Under this zone an advertising sign is classified as Category 2 - Office and Industrial - Low Limitation pursuant to Clause 52.05. As well as the general decision guidelines for advertising signs contained in Clause 52.05-2 of the Port Phillip Planning Scheme a local planning policy titled Outdoor Advertising is contained in Clause 22.08.

10 Whilst St Kilda Junction is recognised as a gateway to Port Phillip (Clause 21.02-7) signage at St Kilda Junction is and has been historically a key part of this intersection and could be described as part of its character. Mr Rodda referred to the iconic Coca Cola sign that was for many years a key feature of the area.

11 The sign replaces an existing sign it is to be no larger than the existing sign and in terms of the actual sign used for advertising will be smaller than the existing sign. In terms of merely replacing an existing sign it cannot be said that the proposed sign will be prominent or visible, encroach into the airspace above the footpath, protrude out from the building façade or block key architectural features of the façade of the building as the existing sign already covers these areas. As such it therefore cannot be said to detract from the existing character of the area in terms of Clause 22.08.

12 The policy suggests such signs as the one proposed can be located on a main road where particular requirements are met. In this respect the sign does not break the skyline or dominate the 'host building' or detract from the architectural integrity of the 'host building' and its supporting structure will not be visible.

13 It appears to be the use of the latest in technology that has lead both the Responsible Authority and Vic Roads to conclude the sign is inappropriate. It is thought that the sign will dazzle or distract both drivers and pedestrians and as a result will not only be more visible and dominant than existing signs in St Kilda Junction but will also have an impact on the safety of road users within St Kilda Junction.

14 Mr Hunt indicated the sign will be clearly observed by motorists travelling eastbound along Queens Road and motorist approaching St Kilda Junction along Fitzroy Street. For the motorist travelling east along Queens Road the sign will be in the peripheral view of the driver for a period of 6-8 seconds and from this angle and period of time it will be possible to view the sign with little or no vertical or lateral movement of the eyes. Approaching from Fitzroy Street the sign will be visible and will be viewed in the context of a number of other signs. If stopped at the lights the sign will be observed for a longer period.

15 Mr Hunt was of the view that 6-8 seconds is sufficient to decipher the message.

16 The sign will be partially visible to drivers when approaching St Kilda Junction from the south on St Kilda Road and turning into Punt Road or St Kilda Road. Unless stationary at the lights the sign will not be visible to drivers approaching from the north along St Kilda Road nor will the sign be visible to drivers approaching from the north on Punt Road or approaching the St Kilda Junction along Wellington Street.

17 Although St Kilda Junction has multi-level intersections the visibility of the sign from the various approaches is relatively confined and it could be said not dissimilar to the existing sign at the intersection of South Road and Nepean Highway the subject of approval by the Tribunal in Octopus Media Pty Ltd v Bayside City Council and Vic Roads [2004] VCAT 2304.

18 St Kilda Junction is already impacted from various light sources which include lit signs on buildings, traffic signals and street lighting. This is not a dark area rather it is extremely well lit and therefore provides easy viewing for drivers negotiating the intersections. The lighting of the sign is to be controlled so that it responds to external lighting varying when the external light is strong or weak as during the day or at night. This is to ensure that the screen is visible at all times. It cannot however be concluded that because the sign will adapt its lighting to suit the conditions around it that it will either dazzle or distract either drivers or pedestrians.

19 It appears that the view the sign will dazzle or distract also emanates from the fact that the sign will be animated. There is nothing to conclude that signs that are animated dazzle. It is not considered that this sign will dazzle.

20 In terms of distraction we are all subjected in our lives to various forms of advertising as are we also subjected to the use of recent technology. This sign is combining both which is not something unexpected or unusual. The sign may result in a second glimpse when first viewed but a second glimpse is no different to what would occur when looking at for example a roadside traffic information sign which Mr Purdue indicated also builds with information over a period of 10-15 seconds. It is more likely that such signs could be considered more distracting to a driver as the information imparted by such a sign is likely to be more immediate to the driver.

21 Mr Hunt and also Mr Purdue referred to research regarding the distraction of advertising signs. The evidence from the various studies undertaken either in Australia or overseas suggest that there is no conclusive evidence that advertising signs on roads have an impact on road safety. Reference was made to various signs already erected in various locations around Melbourne that have either moving images or impart information via moving forms. The decision of Mr Marsden in Trustees of the Estate of The Late George Adams v City of Stonnington, D Hanvey & Others (1996) 17 AATR 7 related to similar technology to that proposed to be used on the subject land. That sign has been in existence for 10 years and there was no information presented that would indicate any increase in accidents as a result of the sign. The efficient use of Dandenong Road and road safety as a result of the "Tattersall" sign does not seem to have been impacted upon at all.

22 It was acknowledged that drivers are constantly distracted by all manner of things either occurring inside or outside a vehicle this is part of driving and individual driver concentration. The St Kilda Junction intersection whilst busy in terms of vehicles, trams and bicycles and to a lesser extent pedestrians is well controlled by traffic signals, therefore when entering the intersection from a particular direction the path of the driver is well defined and does not require concentration over and above the concentration that would be required at any intersection.

23 For the above reasons the decision of the Responsible Authority is set aside and it is determined a permit should issue.

24 The Responsible Authority provided draft conditions and Vic Roads also requested particular conditions. The applicant was given seven days in which to provide a response to the draft conditions.

25 I have reviewed the proposed conditions in the context of the submissions made and have deleted some and reworded others. In doing so I have accepted the applicant's proposed rewording of condition 5 would be more appropriate, conditions 6 is not appropriate nor are the proposed conditions by Vic Roads. There was no evidence to suggest a longer period should be adopted for the image display or that the sign should not be animated, this is what is being approved. In terms of the life of the permit I see no reason to restrict it to 15 years and consider in terms of the requirements of Clause 52.05-5, 25 years is appropriate.