1. Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998w the permit application is amended by changing the purpose of the applicant to:

Removal of existing signage and erection and display of

• an electronic major promotion sign and
• a promotion sign.

1. The decision of the Responsible Authority is set aside.
2. In permit application PLN 10/0518 a permit is granted and directed to be issued for the land at 285B Bridge Road, Richmond, in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:

Removal of existing signage and erection and display of

• an electronic major promotion sign and
• a promotion sign.

Mr. Pitt, Senior Council, instructed by A. Johns of Herbert Geer, lawyers. Mr. Pitt called, as expert witness, the following:

• Mr. Tim McBride-Burgess, town planner, of Contour
• Ms. Deborah Donald, traffic engineer, of O'Brien Traffic.

Remove an existing floodlit, major promotion sign supported on two steel posts and replace it with an electronic major promotion sign and an associated promotion sign containing a logo of the larger sign's manager.

The major promotion sign has a width of 8.84 metres, a height of 3.4 metres and an area of 30 square metres. It will have an overall height of 7.93 metres (i.e. the bottom edge will be 4.53 metres above the adjoining paving). The logo is oval shaped, 2.4 metres long and to be set below the electronic sign.

The existing sign (i.e. the one that is to be removed) has slightly larger dimensions: 1.1 metres wider, 0.19 metres higher and an area of 5.8 square metres in area. Its top is 0.20 metres higher above the pavement.

Draft conditions required that the advertisement images be completely static and not changed more than once every two seconds, while the product or item being promoted cannot be changed more often than every 10 seconds.

Application under Section 77 of the Planning and Environment Act 1987 to review Council's decision to refuse to grant a permit.

Business 1 zone; Heritage Overlay, Design and Development Overlay, Public Acquisition Overlay.

Adjoining land is similarly zoned and, in part, overlaid. Bridge Road is a Main Road (Category 1).

Clause 52.06: display an electronic major promotion sign and a promotion sign in a Business 1 zone

Clause 43.01: demolish existing works, construct or display a sign.

Clause 43.02: construct works in a Design and Development Overlay

Clause 45.01: carry out works in a Public Acquisition Overlay.

Clauses 15.01, Clause 18.02, 21.05-1, 21.05-2, 21.05-4, 22.02, 22.04.

The existing sign is situated on the western side of a small area of open space on the north-western corner of Bridge Road and Church Street, so that the sign faces eastwards and would primarily be seen by traffic travelling west. The proposed sign is to be located in precisely the same position as the existing sign.

Surrounding development is all of two-storey commercial buildings built to the street frontage. The building immediately to the west of the sign, i.e. the building that forms a backdrop to the sign as seen from the east, is only marginally lower than the proposed sign itself.

I have inspected the existing sign and the site's locality on a number of occasions prior to and following the hearing.

P2207/2007 Octopus Media Pty Ltd v Boroondara CC [2007] VCAT 507

Octopus Media Pty Ltd v Port Phillip CC [2005] VCAT 2786

VicRoads v Bayside CC [2009] VCAT 2734

Tewlen Pty Ltd v Melbourne [2010] VCAT 535

1. Octopus Media Pty Ltd proposes to replace an existing major promotion sign with an electronic version of slightly smaller size, together with a relatively small oval-shaped promotion sign that will be located below the main sign and will carry the logo of the larger sign's manager.
2. Council had no objection to the proposed display of the electronic version of the existing major promotion sign but refused to grant a permit on the advice of VicRoads, a referral authority pursuant to s.55 of the Planning & Environment Act 1987. VicRoad's role arises from the fact that Bridge Road is a Main Road under the Planning Scheme.
3. The only grounds of refusal, as dictated by VicRoads, related to the effect of the electronic sign and the safety of road traffic, primarily westbound traffic on Bridge Road but, as a subsidiary issue, traffic on Church Street. The only issue of concern to Council was the separate, smaller 'logo box' (the promotion sign to be set below the larger sign); Council contended that this smaller sign, being a separate entity, would cause visual clutter.
4. Ms. Donald's evidence largely relied on reference to numerous research studies of the effect of electronic signs (commercial or other) on road safety that her firm had presented to the Tribunal in earlier reviews. These studies had sought to investigate, and had universally failed to demonstrate, any effect of the presence of electronic signs on increased likelihood of traffic accidents.
5. VicRoads sought to support its case be reference to studies by the Monash University Accident Research Unit and the Transport Research Board and surveys of driver opinion, published by AAMI[1], that had shown a positive relationship between visually distracting events and drivers' ability to concentrate on the driving task or drivers' concerns about distracting situations.
6. With respect to the 'logo box', Ms. Thomas relied on Council's Urban Designer's advice and Mr. Pitt on the expert opinion of Mr. McBride-Burgess.
7. The two issues that I had to consider, then, were of any effect the proposed sign would have on the safety of vehicular and pedestrian traffic and the effect of the logo box on the visual quality of the adjoining square.
8. Having considered the evidence, I have concluded that I should grant a permit, subject to appropriate conditions.

Would the sign increase the likelihood of a traffic accident?

1. VicRoads submitted that the proposed sign's changing content would distract drivers, leading to increased likelihood of accidents at the Bridge Road/Church Street intersection. Ms. Donald's evidence was that there is no research to support such an outcome. I have concluded that I should give greater weight to evidence-based opinion than research-based probabilities and, consequently, I am obliged to conclude that the sign would not cause an increase in accidents at this intersection.
2. In effect, I found myself having to compare and weigh up to different arguments: one based on field research into the occurrence of accidents, one based on laboratory research into the increased distraction that such a sign would cause drivers and the effect of distractions on drivers' perceptions and reactions.
3. No one argued that the existing floodlit, major promotion sign is inappropriate for its location, given the nature of the land's zoning and the category of adjoining roads. The question that I must address is whether a somewhat similarly sized sign that is brightly lit would, as a result its image changing every 2 seconds or the item or product being advertised changing every 10 to 16 seconds, cause a greater distraction to drivers leading, as a consequent, to more accidents.
4. While VicRoads emphasised the view of the sign from both Bridge Road and Church Street, I accept that its significance, in terms of traffic safety, relates to west bound traffic in Bridge Road. I conclude that views of the sign from Church Street would be so fleeting or peripheral that they do not raise any issues of potential distraction or safety.
5. Members of Ms. Donald's firm, O'Brien Traffic, have given evidence before a number of Tribunal hearings about the conclusions of field research into the effect of electronic advertising signs on road accidents. This research has included studies of accident rates before and after the installation of similar signs on major roads and a review of accident statistics from the locality of three such signs in Melbourne. Ms. Donald also referred me to VicRoads' practice of using electronic information signs in circumstances similar to those that it finds objectionable in this case. As Mr. O'Brien had pointed out to me in a previous review[2], much of this research has generally been undertaken by road authorities, i.e. bodies that, one would expect, would have been hoping for support for their beliefs that such signs do increase accidents[3].
6. To my knowledge, no one has challenged this research and I am not aware of any research with contrary findings.
7. On the other hand, Mr. King's argument was based on the fact that the sign is intended to draw attention and that this would lead to driver distractions and the likelihood of more accidents. He referred to laboratory research into driver behaviour by the Monash University Accident Research Centre (MUARC) that supported the belief that there is a 'correlation between "billboard(s)" and driver distraction'. He also referred to research that showed that novice drivers "have been found to take longer to (visually) disengage from hazards" and that, while older drivers glance away from the driving task less often, more of their glances are to the periphery of their vision. Other research shows that, in the presence of billboards, drivers drive more slowly or make more errors of specific types. Mr. King also provided reports on research by AAMI that indicates that drivers tend to believe that billboards are distracting.
8. The difficulty with which I am faced is that VicRoads has produced evidence (though it was not possible to cross-examine the authors of this research) drawn largely from laboratory research which shows, not surprisingly, that advertising signs tend to distract drivers. What this research does not demonstrate is that the level of distraction that does occur in real, rather than laboratory, circumstances would lead to additional accidents.
9. The question that I must address is whether the proposed sign would lead drivers to have more accidents, not would it increase distractions for drivers. The field research supports the conclusion that the proposed sign would not lead to an increase in accidents, notwithstanding that laboratory research and driver opinion supports the view that it would increase the amount of distraction.
10. Mr. King submitted that the nature of the intersection required a high degree of concentration for westward-bound drivers, both in conducting turning movements and in merging from two to one lane as they moved across the intersection. However, I differentiate this situation from that in Tewlen[4], on the basis that the intersection where that sign was to be sited was much more complex than in this case. in the Tewlen case, the sign was, similarly, an electronic major promotion sign and was to be sited on the north-west corner of City Road and Power Street in Southbank.
11. I therefore conclude that I should not support VicRoads' submission.

Would the logo box cause unreasonable visual clutter?

1. The permit applicant, supported by the evidence of Mr. McBride-Burgess, submitted that the proposed logo box would provide useful information and, subject to a suggested relocation and reduction in size, would not cause visual clutter.
2. I have concluded that, having regard to its already cluttered setting, the proposed logo sign would be acceptable, subject to its downsizing and resiting.
3. The permit application proposed that a 'logo box', which would contain the business name of the sign's manager, Octopus Media, would be in the form of an oval with dimensions of 2.4 metres wide by 0.75 metres height and would be attached to the outer edge of the post closest to Bridge Road, just below the sill of the electronic sign. Mr. McBride-Burgess recommended, in his oral evidence, that this sign could be reduced in size and should be attached directly to the northern column and the sill of the sign above.
4. Council objected to the logo box because it would contribute to visual clutter.
5. The nature and siting of this sign is unusual and Council's advertising policy (Clause 22.04) does not, understandably, address it effectively, other than by way of the requirement that it have

... a proportionate relationship with ... other physical elements.

1. In this case, "other physical elements" justifies reference to the general context of the logo box, including the proposed electronic sign above and its support structure, another wall sign and several windows on the wall behind, the features and furniture of the small square it overlooks and other nearby advertising signs.
2. The important issue, in relation to the logo box, is whether its presence would create visual clutter. Mr. McBride-Burgess, in suggesting that the sign be relocated to the southern edge of the northern post, sought to address a conflict between the logo box and an existing wall sign that would be seen immediately below it when viewed from the east.
3. Mr. McBride-Burgess also pointed out various features that would partly conceal the sign from different viewpoints, e.g. the deciduous tree to the sign's east.
4. From my inspections, I conclude that in fact the setting in which the logo-sign would be seen is relatively quite cluttered, to the extent that another sign, appropriately located, would not make a discernible difference. While photos of the square in front of the sign indicate an area relatively clear of visual clutter, the situation when viewed from a little further away is very different. There is, in fact, a plethora of signs to be seen to either side of the square and in the oblique view along Bridge Road, beyond. In the wider view, event the hole-in-wall windows in the wall that forms the backdrop to the sign form part of the visual clutter of different shapes and colours, even though not themselves being signs.
5. I therefore accept Mr. McBride-Burgess' evidence, but with the proviso that the sign should be located further from Bridge Road and, in order to give a better sense of visual deliberation, be slightly offset from the post and the sign above (which should be readily achieved by a supporting structure of relatively modest scale and detail)

1. I note that in its decision in VicRoads v Bayside CC [2009] VCAT 2734, the Tribunal drew the parties' attention to the fact that Clause 52.05 refers not only to the objective of road safety, but also to the appearance and efficiency of the road. It observed (my emphasis):

In comparison to conventional static billboard signs, electronic signs have a greater impact on roadside appearance, due to their highly illuminated and dynamic nature. As these types of signs perhaps become more commonplace there is the potential for individual merits-based approvals to, cumulatively, have an undesirable effect on the appearance of roads. They also have a greater potential to affect the efficiency of roads, as drivers may slow down on their approach to a sign in order to view its changing messages.

1. The Tribunal, in that case, sought to encourage VicRoads to develop further policies directed to managing electronic major promotion signs so as to address a potential, broader threat to public amenity. Regrettably, there is no evidence that this has occurred or is likely to occur.
2. I would like to emphasise and support the Tribunal's above comments. However, neither the submissions in this review, nor the Council's officers' original report, appeared to address this issue and I have not considered it in this decision.

1. At the conclusion of the hearing, the parties discussed the draft permit conditions that had been prepared by each of the three parties. Mr. Pitt objected to a number of these conditions and sought oral comment from Ms. Donald in relation to these. Issues that the parties specifically addressed are as set out below.

Condition relating to frequency of image changes and other matters

1. Mr. Pitt had proposed a condition that would have the effect of allowing a change of the advertisement's subject not more frequently than every 10 seconds and a change of the associated images every 2 seconds, with the images themselves otherwise being static.
2. Council proposed something similar, but with the subject changing not more often than every 15 seconds. VicRoads proposed that any sequence of images not give the "illusion of continuous movement" and required the subject of the advertisement not to change more often than once in 30 seconds.
3. I accept that a change of image as frequently as once every 2 seconds would not give the impression of continuous movement.
4. There is no information before me to justify any choice between allowing a minimum time for a change of item or subject matter of anything between 10 and 30 seconds. While I accept Mr. Pitt's point that if distraction is an issue, it would more likely be the changes to the image rather than the product that catch one's attention, I cannot rule out the changes to the product may create greater changes in terms of the colour and overall structure of the picture. Nevertheless, in the context of the arguments put to me, I have no basis for concluding that a 10-second interval is too short for changes to the content of the images.
5. I accept Mr. King's submission re VicRoads' proposed condition relating the level of luminance of the sign as being more specific and therefore more readily enforceable.
6. Mr. Pitt argued against a permit condition excluding web-site addresses or phone numbers, pointing out a number of examples of VicRoads' signs or signs accepted by VicRoads with just such information. In general, I accept Mr. Pitt's argument in respect to this matter.
7. I do, however, consider that given the rapidity with which urban change is occurring in inner-suburban areas, a 15-year limit is appropriate for this sign. There will be, course the, opportunity to seek a further permit to affect an extension to the sign's life if not too much has changed by 2026.

1. Having accepted, with qualifications, the general nature of Mr. McBride-Burgess' evidence, I have made appropriate changes to the conditions.

1. I have, based on my above assessment, determined to set aside the responsible authority's decision and to direct the responsible authority to grant a permit.

Removal of existing signage and erection and display of

• an electronic major promotion sign and
• a promotion sign.

1. Before the sign hereby permitted is constructed or displayed, plans depicting the sign, its construction, materials and position are to be submitted to the Responsible Authority for approval. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans S1 Rev E and S2 Rev A, dated 26.07.10, prepared by AML Consultants, but further modified to show:
   1. The "Octopus Media" logo box dimensioned 1.8 metres by 0.6 metres, located to the north of the northern support column and set at least 0.3 metres from the column and 0.2 metres below the sill of the electronic major promotion sign.
2. The location, details and associated structures of the sign shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. The sign must be constructed and maintained to the satisfaction of the Responsible Authority.
4. In relation to the images displayed on the sign:

1. any one image must be presented in a completely static manner, but there can be a change of such static images, provided that such change cannot be quicker than one new image per two seconds; 2. in relation to any one product or item being promoted by the sign, the images associated with that one product or item must as a group run for at least 10 seconds;

1. the sign must not display advertising or messages which contain fully animated or video/movie style advertising or messages; and

1. the sign must not be used for any live television, satellite, internet or similar broadcast.

1. dazzle or distract drivers due to its colouring; 2. be able to be mistaken for a traffic signal because they have, for example, red, amber or green circles, octagons, crosses or triangles;

1. be able to be mistaken as an instruction to drivers.

1. images using an unreasonably high intensity of light in the signs, to the satisfaction of the Responsible Authority; 2. intermittent light(s);

1. advertising or messages which contain any repeated directional motion, flicker or flashing content.

7. The corporate logo box must be a maximum of 1.65 metres x 0.525 metres and must be located on the northern side of the northern support column and set 0.3 metres below the electronic sign and 0.3 metres from the column.
8. Each character or digit displayed must be a minimum of 250 mm high.
9. No more than five (5) lines of text must be displayed on a screen at any one time.
10. The luminance of the advertising sign must be such that it does not give a veiling luminance to the road user of greater than 0.25 cd/m2 throughout the road user's approach to the sign, or otherwise to the satisfaction of the Responsible Authority and VicRoads.
11. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7 am - 6 pm, Monday-Friday (excluding public holidays) and 9 am - 3 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
12. This permit will expire if the signs are not displayed within two years of the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires or within three months afterwards.
13. This permit expires 15 years from the date of issue.

[1] Australian Association of Motor Insurers.

[2] P2207/2007 Octopus Media Pty Ltd v Boroondara CC [2007] VCAT 507. This review dealt with a similar electronic sign at Kew Junction, facing northwards along Princes Street.

[3] The Tribunal's reasons in VCAT 507 included the following:

"(Mr. O'Brien) pointed out that the motivation for such research was the general belief by road authorities that electronic billboards increased traffic accidents (this then being the experimental hypothesis) so that null experimental conclusions should be given greater weight, being contrary to researchers' expectations".

[4] Tewlen Pty Ltd v Melbourne [2010] VCAT 535