With respect to permit application PP06/00991, the decision of the Responsible Authority to refuse to grant a permit is affirmed.

The Responsible Authority is directed that no permit be issued pursuant to section 85(1)(a) of the Planning and Environment Act 1987.

Mr M Dreyfus, QC instructed by Ms A Johns, special counsel of Octopus Media

Mr Dreyfus called two expert witnesses, who provided evidence-in-chief and were made available for cross-examination:

1 This is an application to review the decision by Boroondara City Council ('the Council') to refuse to grant a permit for the display of major animated promotional sky signs (a total of 3 signs) in the form of LED screens (electronic animation) on top of an existing hotel building at 99 High Street in Kew Junction.

2 The two storey hotel building has frontages to High Street South, Studley Park Road and is located effectively in the centre of Kew Junction. There are two existing major promotional signs on top of the building that are attached in the centre by a plain panel. These signs have planning approval until 14 October 2007.

3 This proposal is to replace these signs with three new signs, two with areas of 37 square metres and one with an area of 7.75 square metres. They have an overall advertising area that is slightly less than the existing approved signage on top of the building. Each sign contains an LED screen which Mr Sherwell and Mr Dreyfus both described as being similar to a large television screen. The signs will provide animated advertising/promotional images that will change every 10-15 seconds. They will be internally illuminated 24 hours a day, 7 days per week with the brightness automatically adjusting depending upon the surrounding conditions (i.e. brighter during the day and duller at night).

4 The Council determined to refuse the proposal (without undertaking any public notification) on the grounds that the proposed signs fail to comply with the Advertising Signs local planning policy and will:

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Detrimentally affect the visual amenity of the surrounding area through visual clutter;

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Detrimentally impact on the views and vistas within Kew Junction;

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Dominate the existing building façade;

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Detract from the pedestrian scale and focus of Kew Junction; and

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Result in road safety issues.

5 Prior to this hearing, the Council requested the Tribunal to direct public notification of this matter and this was considered at a Practice Court hearing on 16 March 2007. It was determined that the Council's grounds of refusal included a number of issues that could be expected to be raised by nearby property owners, namely the detrimental impact to the area. As such, it was ordered this hearing should proceed.

6 Mr Dreyfus submitted it is his understanding the Council sent out a letter to surrounding property owners and occupiers around that same time, which probably resulted in the three letters received by the Tribunal last night and during the day of this hearing[1]. Mr Sherwell requested these letters be considered as objections to the proposal. Mr Dreyfus had no objection to this request but pointed out it is unknown what the Council said in their letter; it is unknown if the people notified have looked at the permit application or plans; and none of the people attended this hearing to seek leave to be joined as a party to this matter. Accordingly, he submitted very little weight should be given to these letters of objection.

7 Mr Sherwell tabled a revised set of draft conditions, as he and Mr Dreyfus advised VicRoads had amended their required permit conditions based on an email tabled by Mr Dreyfus that was sent by Mr Martin Vegt of VicRoads to Ms Amanda Johns (the instructing solicitor).

8 I advised the parties at the commencement of the hearing that I was familiar with the review site and surrounds; and after the hearing I inspected the site and surrounds on two occasions, once during the day and once at night.

9 The review site is contained within a Business 2 Zone under the Boroondara Planning Scheme ('the Planning Scheme'). Planning approval is required for major promotional signs and the purpose of the planning controls for such signage is:

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To achieve high quality visual standards for the siting of major promotion signs.

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To ensure that the signs are not detrimental to the appearance of their surroundings or the safe and efficient operation of the route through the application of consistent planning controls.

10 There are a number of decision guidelines and locational principles in the Planning Scheme that must be considered or taken into account in determining whether to grant a permit, which I do not intend to quote at length in this decision[2]. In essence, they require consideration of the effect of the signage on road safety and the character of the surrounding area.

11 Mr Sherwell pointed out the State planning policies relating to activity centres and economic development are relevant to this proposal; however, there is nothing particular in their content that comments on major promotional signs.

12 There are two relevant local planning policies in the Planning Scheme being the Retail Centre Policy at clause 22.10 and the Advertising Signs Policy at clause 22.01.

13 The Retail Centre Policy recognises Kew as one of three primary retail centres serving both a local and wider market and its objectives include reinforcing the retail function and vitality of retail centres.

14 The Municipal Strategic Statement states that the purpose of applying the Advertising Signs policy is to ensure the form and amount of outdoor advertising is appropriate to the character of the area and the building on which it is located; and to ensure signage appropriately defines gateways to business centres and complements the image of centres.

15 Mr Sherwell pointed out that the current planning permit for the existing major promotion signs on top of the hotel building expires in October 2007, therefore he submitted this proposal for new advertising signage should be considered on the basis that the review site is "a clean site without signage". Mr Dreyfus argued major promotion signs have existed on this site since 1988 and Mr Sherwell's submission cannot be substantiated because the Council would need to demonstrate that a new permit for signage on this site would not be reissued. Mr Dreyfus submitted what should be considered is what lawfully exists on the site now and I agree.

16 Mr Sherwell submitted the review site is outside of the Kew Junction shopping centre based upon the shading of the shopping centre illustrated on a map contained on page 10 of the Advertising Signs local planning policy. I find this submission to be simplistic and largely unhelpful. I presume this map is to assist in ascertaining what policy statements of the Advertising Signs policy are applicable to a proposal for advertising signage, as it contains statements relating to specific shopping centres and land uses. I am satisfied that the review site does form part of Kew Junction activity centre[3] and the Kew Junction retail centre[4]. The fact that the review site is zoned Business 2 and is adjacent to other commercial activities is part and parcel of the zoning and activities one would expect to find in an activity centre, a retail centre or a shopping centre.

17 When making submissions on the effect of the proposal, Mr Sherwell stated the Council is unable to comment on what the impact may be upon surrounding land owners because the permit application was not publicly advertised by the Council, but he then referred to the concerns expressed in the three letters of objection sent to the Tribunal on the day of, and the day before, this hearing. Mr Dreyfus pointed out the letter from 5 Studley Park Road is the Quest serviced apartments and it is unknown whether the author of this letter is an owner or an owner/occupier. In addition, the proposed signs will not visible from this property; rather, it is the back of the signs that will be visible, and these are to be enclosed with a rear solid wall and a roof. Based on the proposed enclosure and the limited ability of this property to gain any views of the proposed signs, I agree with Mr Dreyfus' submission that the signs will not detrimentally impact upon the amenity of this property. Mr Dreyfus submitted the view from 1 Princess Street (where the other two objections come from) will be of smaller, more attractive signage than what is there now. The appearance of the signage is one I will discuss further later. What needs to be acknowledged now is that these objections are from commercial premises (rather than residential dwellings) and I am not persuaded by these letters that any detriment by way of distraction, loss of view or reduced aesthetic views from office premises is sufficient reason to refuse this proposal.

18 This brings me to the key arguments of this case as focussed upon by Mr Sherwell and Mr Dreyfus. The first is the appropriateness of the proposed signs within the surrounding context; and the second is the impact of the proposed signs upon the surrounding traffic safety. In support of these arguments, both gentlemen made reference to previous cases before this Tribunal and its predecessors relating to major promotion signs on this site and in Kew Junction; and previous cases by this permit applicant for similar signs in Victoria and New South Wales.

The Appropriateness of the Proposed Signs within the Surrounding Context

19 The review site forms part of the Kew Junction activity centre, which is spread out over a number of streets that traverse the junction intersection. To the northeast and east of the review site are High Street and Cotham Road, which merge into one roadway as one approaches the junction. These two streets and the streets leading off them contain the retail shopping area of the Junction. Whereas to the north, south and west of the review site are predominantly commercial and industrial activities.

20 The differing land uses around the junction are also recognisable in the building forms and the level of signage. The retail shopping area is generally of a lower and finer grain building form with a variety of colour due to the existence of signage above and below verandahs, including two major promotion signs close to the junction facing Studley Park Road. One of these is internally illuminated and the other is floodlit. The commercial areas include taller building forms, particularly for those properties immediately adjacent to the junction. There is limited signage on these buildings and hence they appear as more solid elements, and generally of consistent duller colouring in comparison to the retail area. Within this context, the review site could arguably be described as an anomaly because it is two storeys in height whereas the nearby office buildings at 89 High Street and 1 Princess Street are in the order of eight storeys. It contains two existing major promotion signs which, during the day, read against the backdrop of surrounding buildings and roads. Whilst the signs have floodlights, on the night I inspected these signs they were unlit making them unreadable and undistinguishable.

21 Mr Dreyfus referred to decisions by this Tribunal's predecessors relating to major promotional signage in Kew Junction. In Claude Neon Ltd v City of Kew (1978) 11 VPAD at 217, the Town Planning Appeals Tribunal considered an illuminated sky sign at 128 High Street, which is in the junction and opposite the review site. The sign is oriented to face Studley Park Road and the Tribunal found at page 220:

The proposed sign would be visible on many approaches to the intersection which of course is its purpose so far as the applicant is concerned. ... We are of the view that signs of this kind are to be expected at intersections of this nature. In one sense it may be said that they are an advantage from the point of view that they indicate, especially at night, that a major intersection is being approached. We do not believe that the presence of such a sign is likely to cause any distraction notwithstanding its obvious presence.

22 In Nettlefold Advertising v City of Kew (1988) ('the Nettlefold case'), the Administrative Appeals Tribunal of Victoria considered the existing major promotion signs on the review site. The decision notes the principal viewing corridors will be from High Street and Princess Street, and the sign will generally be read against the backdrop of the existing office building at 89 High Street. The Tribunal found at page 9:

In the opinion of the Tribunal, the length of view of the proposed sign and the time for which it would be exposed, particularly to motorists, is limited to the two corridors indicated. The maximum exposure would be when pedestrians or motorists are within the precincts of the junction, and as expressed above, the Tribunal believes that the character and amenity of the junction is one of commercial/office developments, prominent and colourful road traffic signs, traffic lights and overhead street lights that the sign is not out of keeping with that visual amenity.

23 Mr Dreyfus highlighted the existing major promotion signs have been in place for two decades already. He described them as large illuminated signs and submitted the long existence of large promotional signs provides justification to allow the proposed LED screens. I am of the view the long existence of one type of sign on the review site does not provide justification for a different type of sign. Member Bennett described this proposed form of signage (LED screens) as an example of modern technology and made the following comments:

I like the concept of a large TV type screen - it is a sign of the future and I consider it visually far preferable to the large panel signs of the past.[5]

24 I find the existing major promotion signs are quite different to the proposed LED signs, for example each of the existing signs displays one message only; they have no illumination during the day; it appears they may not always be floodlit at night; and there are currently only two signs and a blank central panel whereas this proposal contains three separate signs illuminated with a level of brightness applicable to day and night conditions, and each is capable of displaying individual multiple advertisements for 10-15 seconds with moving images. As such, the appropriateness of allowing LED signs on this site in Kew junction needs to be considered on its own merits, a view that I note was expressed in Mr Rodda's evidence.

25 Mr Dreyfus brought to my attention three existing LED type signs in Melbourne, all of which have been approved by the Tribunal in the past:

i

The Tattersalls sign (with an advertisement area of about 28 square metres) near the corner of Tooronga Road and Dandenong Road in East Malvern that displays, amongst other advertisements, the weather forecast[6];

ii

The LED sign (with an advertisement area of about 34 square metres) in St Kilda Junction[7]; and

iii

The LED sign (with an advertisement area of about 30 square metres) near the corner of South Road and Nepean Highway in Hampton East[8].

26 Mr Dreyfus and Mr Sherwell also referred to two other applications by Octopus Media Pty Ltd for LED signs that have been refused:

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An LED sign (with an advertisement area of about 20 square metres) on Myer House in Elizabeth Street Melbourne refused by the Tribunal on urban design grounds in the matter of Octopus Media Pty Ltd v Melbourne City Council [2006] VCAT 1458 ('the Melbourne case'); and

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An LED sign (with an advertisement area of about 18 square metres) on the corner of Parramatta Road and Leicester Avenue Strathfield refused by the New South Wales Land and Environment Court on road safety implications in the matter of Octopus Media Pty Ltd v Canada Bay City Council [2006] NSWLEC 580 ('the Strathfield case').

27 Obviously, the context of each of these signs (whether existing or refused) is different but one item that I consider noteworthy is each case was for a single LED screen/sign and the advertisement area of the respective sign varies between 18 and 34 square metres. In this proposal, three attached LED screens/signs are proposed, which will all be visible from High Street, creating a total advertisement area in the order of 81 square metres. This is significantly greater than any of the other signs mentioned earlier.

28 In the Nettlefold case for the erection of the existing major promotion signs on the review site, the Tribunal considered the overall advertisement area on each of the three frontages as effectively one sign and stated on page 12:

It [the sign] faces a healthy retail/commercial area, heavily trafficked and at a higher level with a significant number and variety of advertising signs existing. In the Tribunal's view, this proposed sign merely terminates a view along a commercial corridor and is complementary to it.

29 I agree the existing single static major promotional signs on the review site with no illumination during the day read as part of the overall package of building forms and add a point of interest to this retail centre. I find these signs do not dominate the view and merely form part of the overall context as they blend with the existing character of the junction. I have a different opinion on the contribution of three television screens that have a brightness to ensure they are always legible with moving advertisements that will vary every 10-15 seconds. They are designed to stand out and attract your attention. They are capable of displaying three individual advertisements at the one time and these may vary 4 to 6 times over the space of a minute. In my opinion, the combination of these factors means the three LED screens/signs will be a dominant element in the view corridor that will detract from the character, interest and vitality of the balance of the retail centre.

The Impact of the Proposed Signs upon the Surrounding Traffic Safety

30 The impact of electronically animated signage on traffic safety is an issue that has arisen in a number of the other cases I was referred to. Mr Dreyfus submitted significant weight should be given to the fact that VicRoads does not oppose the proposal. He also submitted the Tattersalls sign at the Tooronga/Dandenong Roads intersection has been there for 10 years[9] and there is no evidence of increased traffic accidents at this intersection. This submission was reiterated in the evidence of Mr Holdsworth; however neither Mr Dreyfus, nor Mr Holdsworth provided any traffic accident statistics pre and post such signage being erected in any location to support this.

31 Mr Holdsworth explained the purpose of the proposed signs is to attract your attention and there is existing evidence that this type of sign does distract drivers, but he expressed the view that 'distraction' is an emotive term and the real issue is whether they create a road safety hazard as a result of being a distraction. Mr Holdsworth gave evidence that there is a low probability of distraction in urban areas and signs are more likely to be distracting in a country location where there is no other signage or activity that currently provides distraction.

32 The impact of LED signage on traffic safety is an issue that arisen in the majority of the other cases referred to during this hearing (excluding the Bayside case). In the Port Phillip case, the Melbourne case and the Strathfield case, the expert evidence and submissions referred to research undertaken regarding the distraction of advertising signs, including LED or "video" signs. The Port Phillip and Melbourne cases found there is no conclusive evidence that such signage impacts on road safety. In the Strathfield case, the Court found at paragraph 28:

Having considered the various studies referred to by the experts, I have reached the conclusion that they do not definitively establish that a sign of the kind here proposed would necessarily result in a reduction in road safety. They do however show that such signs can and do attract drivers' attention, probably more so than more conventional signs but there is no certainty that the extent to which this diversion of attention is sufficient to be dangerous. Similarly, considering Mr Hunt's analysis of available accident crash statistics before and after the installation of signs in Melbourne and Sydney, I have been unable to reach any meaningful conclusion as to whether or not these particular signs have had any adverse effect on road safety. Hence the proposed sign needs to be dealt with on its own merits and in its own particular context

33 The Court then went on to find that particular views of the proposed sign will appear in the midst traffic signals and directional signage and in a driver's direct line of sight, thereby affecting the prominence of, and reducing the effectiveness of, traffic signals and directional signage. This was of concern to the Court as the sign was being read effectively at street level and the attractiveness of the proposed sign would be a distraction to drivers. The Court found:

In these circumstances I am satisfied that this particular sign, in the location proposed is likely to have adverse traffic safety consequences notwithstanding that it is clearly not possible to quantify these.[10]

34 Mr Holdsworth stated he understood the sign proposed in the Strathfield case was much closer to the ground than what is proposed here and he agreed with the findings of the Court that a sign closer to the ground is more likely to distract drivers. He advised he would be unlikely to support this type of sign in such a situation where the sign can be read in a similar view cone to traffic lights but pointed out the proposed signs in this case are elevated well above the junction traffic signals and directional signage. Whilst I agree with this evidence, I also note Mr Holdsworth gave evidence the proposed three signs are in a driver's primary view cone as they travel west along High Street until they reach Brougham Street. Hence, the signs are in a driver's direct line of sight and will appear in the midst of the pedestrian traffic signals that cross High Street near Walpole Street. I asked Mr Holdsworth about this and he acknowledged the signs are clearly in the same view cone as the traffic signals but reiterated the view expressed by himself and the other cases I have been referred to that there is no conclusive evidence this leads to a road safety problem. What he did not say (and probably was unable to say given the research undertaken to date) is that this situation will not create a traffic hazard.

35 The retail centre of Kew Junction exists along High Street and the intersection of High Street and Cotham Road. It is a highly 'pedestrianised' environment with pedestrian traffic signals providing connections across both roads at one point. Added to this, both High Street and Cotham Road contain tram routes with trams turning into and out of the intersection of High Street and Cotham Road. In my opinion, the highly 'pedestrianised' environment combined with the level of vehicular traffic and tram movements is a distinguishing factor of the surrounding context for the proposed signs in comparison to the Tattersalls sign and the Bayside and Port Phillip cases. I am not persuaded that three individual but attached LED screens/signs that can display three individual advertisements at the one time over the space of 10-15 seconds in a driver's primary view cone amidst pedestrian traffic signals and in a highly pedestrianised environment with turning tram movements is an appropriate traffic safety outcome.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be issued.

[1] Faxed letters were received from Dr J Antoniadis of Suite 108, 1 Princess Street Kew; R & W Finck of Suites 207 & 214, 1 Princess Street Kew; and P Leong, owner of an apartment at 5 Studley Park Road, Kew.

[2] Refer to clause 52.05-5 of the Planning Scheme for the decision guidelines and locational principles for major promotion signs.

[3] Pursuant to clause 12 of the Planning Scheme and Melbourne 2030

[4] Pursuant to the Retail Centres Policy at clause 22.10 of the Planning Scheme which describes the Kew Junction Retail Centre as having significant office development, encouraging office development and discouraging the location of core retail activities in Business 2 and 3 Zones.

[5] Octopus Media Pty Ltd v Bayside City Council and Vic Roads [2004] VCAT 2304 at paragraph 13 ('the Bayside case')

[6] Trustees of the Estate of the Late George Adams v City of Stonnington 17 AATR 7

[7] Octopus Media Pty Ltd v Port Phillip City Council [2005] VCAT 2786 ('the Port Phillip case')

[9] I inspected this sign after the hearing and noted it is not currently working at all.

[10] Refer to paragraph 34 of the Strathfield case