COMMISSIONER: This is an appeal against the refusal of Development Application D/2014/1002 by the Council of the City of Sydney for replacement of the existing static rooftop general advertising sign to a digital LED display screen erected on the roof of the Oxford Hotel at 134 Oxford Street Darlinghurst (the site). The Roads and Maritime Services of New South Wales (RMS) were made a party to the proceedings on 2 December 2014.
The development application describes the application as "the upgrade of the existing approved Advertising Sign to a Digital Display". It proposes the conversion of the existing static illuminated rooftop general advertising sign consisting of vinyl skins tensioned across its face to a digital LED display screen.
The proposed LED screen will be located in the same position as the existing general advertising sign, which is sited diagonally across the roof of the Oxford Hotel. Part of the existing support structure for the existing sign is to be used for the new LED digital screen.
The active face (eastern) of the digital screen measures 12.436 m x 4.390 m, for a total advertising display area of 54.59 sq m. The overall dimensions of the sign, including the frame that the digital screen sits in is 13.784 m long x 6.1 m high (84.06 sq m) and 1.14 m wide. The proposed digital screen will form part of an integrated frame that is clad with dark grey metallic Alucobond.
This existing advertising sign measures 15.5 m x 6.1 m and is 410 mm wide, for a total advertising display area of 94.55 sq m. The display area occupies the whole sign structure. The proposed sign, including the frame, is smaller in length, has the same overall height and is wider than the existing sign although the advertising area is smaller.
[2]
The contentions
The council raise the following contentions in relation to the proposed sign:
1. the limitations to the existing use rights of the existing sign,
2. the sign will have a detrimental impact on heritage significance of the Oxford Hotel and the heritage conservation area and the streetscape of Oxford Street, and
3. the sign will not improve the visual amenity of the locality.
The RMS raise the following contentions in relation to the proposed sign:
1. the sign will materially diminish the ability of a driver to discern the presence of, and/or change in traffic control light nearby leading to an increased risk of collisions, and
2. the sign will potentially materially divert a driver's attention, both visually and cognitively, from the task of operating a motor vehicle leading to an increased risk of collisions.
[3]
Background
The roof of the Oxford Hotel has displayed large format advertising for more than 70 years based on a search of council files and historic photographs. Development consents granted for signage since 1980 are:
DA 44/80/747 - On the 23rd October 1980, council granted consent for a roof sign 15.3 m x by 6.1 m displaying the word 'Sanyo'. The structure comprised a blue and white colour palette. The application was referred to the former Department of Main Roads NSW as the site was located in the County Road Reservation Maps, and the former NSW Department of Environment and Planning for Concurrence. There was no objection to the proposal.
DA 641/89 - On the 19th October 1989 the council granted development consent to reface the sign to display the word 'Capita'.
[4]
Relevant planning controls
The site is within Zone B2 Local Centre under Sydney Local Environmental Plan 2012 (LEP 2012). Advertising signs are permissible with consent in this zone. Clause 2.3(2) states:
(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
The zone objectives are:
• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
• To encourage employment opportunities in accessible locations.
• To maximise public transport patronage and encourage walking and cycling.
• To allow appropriate residential uses so as to support the vitality of local centres.
Clause 5.10 provides requirements for Heritage conservation with cl 5.10(4) requiring an assessment of the effect of a development on the heritage significance of any heritage items and heritage conservation areas.
State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64) applies. The proposed sign is defined as:
roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building.
The aims of SEPP 64 are:
(a) to ensure that signage (including advertising):
(i) is compatible with the desired amenity and visual character of an area, and
(ii) provides effective communication in suitable locations, and
(iii) is of high quality design and finish, and
(b) to regulate signage (but not content) under Part 4 of the Act, and
(c) to provide time-limited consents for the display of certain advertisements, and
(d) to regulate the display of advertisements in transport corridors, and
(e) to ensure that public benefits may be derived from advertising in and adjacent to transport corridors.
Clause 8 provides requirements for granting consent. The clause states:
A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:
(a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and
(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.
Clause 10(1) states:
(1) Despite the provisions of any other environmental planning instrument, the display of an advertisement is prohibited on land that, under an environmental planning instrument, is within any of the following zones or descriptions:
.
heritage area (excluding railway stations)
natural or other conservation area
As the site is located within a conservation area, the sign is prohibited however it was agreed that the existing sign has existing use rights from the consent granted by the council in October 1980. As cl 10(1) derogates from the existing use rights provisions, the clause has no force or effect.
Clause 18 applies to the application as it is greater than 20 sq m and within 250 m of, and visible from, a classified road. Clause 18(2) and (3) state:
(2) The consent authority must not grant development consent to the display of an advertisement to which this clause applies without the concurrence of the RTA.
(3) In deciding whether or not concurrence should be granted, the RTA must take into consideration:
(a) the impact of the display of the advertisement on traffic safety, and
(b) the Guidelines.
The RTA (or presently the RMS) has not granted concurrence to the proposed sign although s 39(6)(a) of the Land and Environment Court Act 1979 provides that the Court "may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted". In relying on s 39(6), the Court must consider the requirements in cl 18(2) and (3).
The Guidelines in cl cl 18(3)(b) is defined as:
Guidelines means the provisions of the publication titled Transport Corridor Outdoor Advertising and Signage Guidelines approved by the Minister for the purposes of this Policy, as in force and as published in the Gazette on the date of publication in the Gazette of State Environmental Planning Policy No 64 - Advertising and Signage (Amendment No 2).
Clause 21 provides specific requirements for roof or sky advertisements.
The Draft Transport Outdoor Advertising and Signage Guidelines (the draft Guidelines) were also referred to in the proceedings. The draft Guidelines provide specific requirements for digital signs although no time frame was available for the draft Guidelines to supersede the Guidelines.
Sydney Development Control Plan 2012 (DCP 2012) applies to the site and contains requirements for Heritage Conservation Areas and signage.
[5]
The legislative framework
The Environmental Planning and Assessment Act 1979 (EPA Act) relevantly provides:
107 Continuance of and limitations on existing use
(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.
(2) Nothing in subsection (1) authorises:
(a) any alteration or extension to or rebuilding of a building or work, or
(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or
(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e) the continuance of the use therein mentioned where that use is abandoned.
(3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
108 Regulations respecting existing use
(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:
(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and
(b) the change of an existing use to another use, and
(c) the enlargement or expansion or intensification of an existing use.
(d) (Repealed)
(2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.
(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.
(4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development.
109 Continuance of and limitations on other lawful uses
(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.
(2) Nothing in subsection (1) authorises:
(a) any alteration or extension to or rebuilding of a building or work, or
(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or
(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e) the continuance of the use therein mentioned where that use is abandoned.
(3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
.
109B Saving of effect of existing consents
(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.
(2) This section:
(a) applies to consents lawfully granted before or after the commencement of this Act, and
(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and
(c) has effect despite anything to the contrary in section 107 or 109.
(3) This section is taken to have commenced on the commencement of this Act.
The Environmental Planning and Assessment Regulation 2000 (the Regulations) relevantly provide:
40 Object of Part
The object of this Part is to regulate existing uses under section 108 (1) of the Act.
41 Certain development allowed
(1) An existing use may, subject to this Division:
(a) be enlarged, expanded or intensified, or
(b) be altered or extended, or
(c) be rebuilt, or
(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or
(e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or
(f) if it is a light industrial use - be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).
(2) However, an existing use must not be changed under subclause (1) (e) or (f) unless that change:
(a) involves only alterations or additions that are minor in nature, and
(b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and
(c) does not involve the rebuilding of the premises associated with the existing use, and
(d) does not involve a significant intensification of that existing use.
(e) (Repealed)
(3) In this clause:
commercial use means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006).
light industrial use means the use of a building, work or land for the purpose of light industry (within the meaning of the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006).
42 Development consent required for enlargement, expansion and intensification of existing uses
(1) Development consent is required for any enlargement, expansion or intensification of an existing use.
(2) The enlargement, expansion or intensification:
(a) must be for the existing use and for no other use, and
(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.
43 Development consent required for alteration or extension of buildings and works
(1) Development consent is required for any alteration or extension of a building or work used for an existing use.
(2) The alteration or extension:
(a) must be for the existing use of the building or work and for no other use, and
(b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.
.
44 Development consent required for rebuilding of buildings and works
(1) Development consent is required for any rebuilding of a building or work used for an existing use.
(2) The rebuilding:
(a) must be for the existing use of the building or work and for no other use, and
(b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.
[6]
The submissions
The council and the applicant agree that the sign has existing use rights under s 106(b). Section 107 allows the continuation of that existing use. Section 108 provides the opportunity for regulations to made in relation to an existing use, relevantly for the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use (s 108(1)(a)). Section 43(1) of the Regulations requires that development consent is required for "any alteration or extension of a building or work used for an existing use". Section 44(1) of the Regulations requires that development consent is required for "any alteration or extension of a building or work used for an existing use". It was not clear whether approval was sought under s 43(1) or 44(1) although nothing turns on this as a development application is required in both instances. The parties accepted that a development application was required and consequently an assessment under s 79C(1) of the EPA Act.
The parties however differed on parts of the interpretation of the existing use rights provisions, including the extent of the derogation provisions in s 108(3) and the need to consider the difference in impact of the existing sign and the proposed sign or the impact of the proposed sign only.
Mr Hemmings submits that a development application may be lodged to allow for a new structure to house the sign. However the application requires consideration under s 79C(1) of the EPA Act, including "any environmental planning instrument" (s 79C(1)(a)(i)), "any development control plan" (s 79C(1)(a)(iii)), the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality" (s 79C(1)(b)) and "the suitability of the site for the development" (s 79C(1)(c)). The consideration required under s 79C(1) must be made under the current planning controls applying to the site, including LEP 2012, SEPP 64 and DCP 2012, in this case. The assessment by the council's experts, on the basis of the likely impacts of the new sign (and not a comparison with the existing sign) is that the sign should be refused.
Mr Hemmings submits that on the derogation provisions in s 108(3), the question to be asked is whether there is anything in the environmental planning instruments that apply, which derogates from that right to make a development application. His response is that if they derogate from the right to make a development application, such as a prohibition, then the provision has no force or effect. But if the provision allows a development application to be made and provides controls that apply to the development application, under s79C, then they do not derogate because the Regulations do not purport to place limitations on the ability to make an application and consequently the assessment of that application.
Mt Tomasetti SC, for the applicant, accepts that a development application is required but submits that not all parts of the current planning controls apply to the proposed sign as certain provisions derogate from the Incorporated Provisions, pursuant to s 108(3). Mr Tomasetti identifies cl 6.21 of LEP 2012, cl 18 and 21 of SEPP 64 and a number of provisions in DCP 2012 as derogating (or "appear to derogate") from the incorporated provisions, and as such these provisions are of no force or effect. The applicant's experts regularly adopt the approach that the assessment should be made on the difference in any impacts between the existing sign and the proposed sign and that this assessment concludes that there is no reason why the sign should not be approved.
Findings on existing use rights
In considering the different submissions, I agree with the conclusions of Mr Hemmings that, in a planning context, the distinction between use and building work is set out in the Court of Appeal decision in Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147 where Lemming JA states at [52] to [54]:
52. It is also clear that Council's approval in 1933 was for those structural alterations to be made in accordance with the approved plans; if that did not occur, then an occupation certificate under s 316 might be withheld. However, once again it does not follow that those plans circumscribed the use which might be made of the altered building. It is basic that use must be for a purpose, and that the purpose is not concerned with the nature of the buildings that will be used to serve that purpose. That was the reason for the criticism of substantially the same submission which was advanced by the council in Ashfield Municipal Council v Armstrong [2002] NSWCA 269; 122 LGERA 105, where the question was whether a use of a building comprising four flats had commenced prior to a prohibition coming into force (at [11]):
"In specifying 'four flats' as a component part of the 'use', Mr Craig's submission elided the distinction between use and building. The provisions of the EPA Act set out above are concerned with 'existing use', that is, the 'use ... for a lawful purpose' of premises."
53. The same principle was more recently restated in Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 at [51]-[52] (Beazley JA, Campbell JA and Handley AJA agreeing):
"[I]n planning law, 'purpose' is not concerned with the nature of the buildings that will be used to serve that purpose. Uses of different natures can still be seen to serve the same purpose".
54. The primary judge's reasoning appears to have reached a conclusion as to use from the plans alone, divorced from the planning regime applicable in 1933. It will be seen from the foregoing that I would, respectfully, take a different approach.
It follows that any derogation must relate to the existing use and not the making of a development application. If a development application can be made there is no derogation when the controls that apply to that development application pursuant to s 79C assessment are applied.
While Mr Tomasetti relied on the Court of Appeal decision in Carden and anor v Willoughby Municipal Council (1985) 56 LGRA 366. I accept the submission of Mr Hemmings that this decision has not been followed in more recent times for good reason. The non-applicability of Carden is specifically identified in the decision of Craig J in Cracknell & Lonergan Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 197 where His Honour states at ([76]):
76. The Architects submit I am bound to determine that the development standards imposed by cl 19 of LEP 2000 derogate from cl 41(1)(d) and cl 45 of the Regulation by reason of the decision of the Court of Appeal in Carden v Willoughby Municipal Council. I do not accept that submission. In Carden the Court was concerned to determine whether the provision of a regional environmental plan that prohibited the grant of development consent on land in question "unless there is provided on the site a car parking station", derogated from the incorporated provisions in the form which they then took. The use of the land at the time at which development consent was made to change that use was an "existing use" within the meaning of the EPA Act.
His Honour further states at ([79]):
79. For the reasons earlier indicated, the proper interpretation of the present Regulation leads me to conclude that the determination in Carden no longer has application to the present form of cl 41(1)(d), at least as it is sought to be applied to the application of development standards imposed in a planning instrument. …..
The consideration of whether any assessment of impact should relate to the sign as proposed, or the difference between the existing sign and proposed sign is best addressed in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 where Pain J states at [87] and [88]:
87 The Applicant therefore argued that a merits review for the proposed new building should only be an assessment of the proposed building against what is being replaced. The Applicant is entitled to have its existing use approved, albeit in a new building. That submission is not supported by s 107 and s 108 of the EP&A Act. If s 107(1) and (2) are considered there is no presumption that an existing use which can continue under s 107(1) can be rebuilt (see ss(2)(a)). The Act by virtue of s 108(1) provides that regulations may be made enabling the application for development consent to rebuild a building being used for an existing use. This has been provided for by cl 41 and cl 44 of the Regulation which require that development consent be obtained for the rebuilding. There is no entitlement to a development consent for a rebuilding, only an entitlement to make a development application. No case to which I have been referred has said that in the assessment of a development application to rebuild or intensify an existing use it is a given that the new proposal must be assessed as against what it replaces to determine if it is satisfactory. Principle 2 in Fodor states that where an existing building is proposed for demolition there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. That is correct in my view, given the provisions of the EP&A Act I have outlined. If a merit assessment under s 79C is applied to a new building which is a rebuilding for the purposes of continuing an existing use, it is possible that the existing use holder will not be allowed to build something identical to that which already exists if a merits assessment results in the conclusion that the impacts under s 79C are unacceptable.
88 That is not to say that consideration of the building intended to be replaced is irrelevant to the merit analysis under s 79C. It may well be appropriate depending on the circumstances that the building intending to be replaced is considered, and I consider it is appropriate in this case to do so. The merits assessment is not confined to that comparison only however, it is also necessary to consider the development application more broadly under s 79C. ….
I accept that the existing use rights are limited to the use of the structure, that is for displaying signage rather than the structure itself. This has a significant impact on the assessment of the impacts of the proposed sign. In accepting that the signage, rather than the sign structure has existing use rights, the general approach of the council experts that any s 79C assessment must be made on the sign as a new structure and subject to the currently applying planning controls is the correct approach. The proposition that the assessment of any impacts should be addressed as an exercise in assessing the difference in impacts between the existing sign and the proposed sign must be rejected.
It was not clear how the proposed sign was to be characterised for the purposes of the Regulations, although it did not ultimately affect how the application was to be considered. The development application describes the proposed sign as "the upgrade of the existing approved Advertising Sign to a Digital Display", the Statement of Environmental Effects describes the application as "the conversion of an existing general advertising sign to a digital LED screen" and Mr Tomasetti's written submissions states the "Proposed Sign will retain the position and orientation of the Existing Sign and will continue to use the structure of the Existing Sign".
If there is any dispute over the specific type of development and how it is to be characterised in the Regulations, that is whether it is "alteration or extension of a building or work used for an existing use" (s 43(1) Regs) or "rebuilding of buildings and works" (s 44(1) Regs) , I accept the explanation provided by Mr Logan, the councils architect and heritage consultant, on the new and existing structural details for the proposed sign where he states:
Having reviewed the three engineering drawings prepared by Engineering Studio, it appears to me that the supporting structure for the new sign is largely new. The footer beams of the existing structure are retained, as are 7 existing columns (one of which is relocated). Nevertheless, the drawings show that a range of new structural elements is to be introduced to support the new sign including a large number of beams, columns and bracing elements. It appears to me that the number of new structural elements far exceeds the number of existing elements that are retained. Further, the structural form is quite different to that of the existing sign
On the basis of Mr Logan's analysis, I accept that the proposed sign is the "alteration or extension of a building or work used for an existing use" addressed in s 43(1) of the Regulations.
[7]
Heritage
The legislative framework
Clause 5.10 of the LEP 2012 relates to heritage conservation. The objectives of the clause are:
(a) to conserve the environmental heritage of the City of Sydney,
(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
(c) to conserve archaeological sites,
(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.
Clause 5.10(4) states:
(4) Effect of proposed development on heritage significanceThe consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
The site is located within C17 Oxford Street Conservation Area (the Conservation Area). The following Statement of Significance for the area is taken from the State Heritage Inventory and is adopted by the council:
Oxford Street has state historical significance. As the South Head Road and possibly the oldest highway in Australia, it connected the settlement at Sydney Cove with the Signal Station at South Head, and quickly became one of the most popular recreation resources for Sydney's population during the nineteenth century. In the early twentieth century Oxford Street provided the main artery connecting the centre of Sydney with the coast, thus contributing to the rise of a popular and enduring beach culture in Sydney. As well, the process of road widening that took place at the beginning of the twentieth century at its western end marks a major point in the development of town planning principles in Sydney.
Oxford Street is able to demonstrate in a powerful way the growth and development of Sydney and municipal government during the nineteenth and twentieth centuries. It contains many items that illustrate these processes, such as Busby's Bore, Darlinghurst Courthouse, and buildings erected in the wake of the road widening that took place during the first half of the twentieth century.
Oxford Street has remarkable aesthetic significance at a state level, containing buildings of national and state significance and buildings designed by important nineteenth and twentieth century architects.
Sections of the street contain remarkably homogenous and intact streetscapes. These include the collection of Victorian and Federation era buildings along the southern side of the street in Darlinghurst and the consistent groups of Federation Free Style buildings along the northern side of Oxford Street in Darlinghurst, between Liverpool and Bourke Streets. This part of the street is arguably the finest Federation era commercial streetscape within New South Wales Indeed, it demonstrates many of the characteristics of a Victorian era High Street and still retains evidence of changing patterns of retailing in the nineteenth and twentieth centuries.
Oxford Street provides evidence of the "gentrification" that took place during the 1950s and 1960s when inner city areas were rediscovered as desirable places in which to live. As an extension of this trend, the street has important associations with the rise of the preservation and conservation movement in New South Wales during the 1960s. The street is also significant because of its ongoing associations with Sydney's gay community since the 1960s
DCP 2012 identifies the site as a contributory building in the Building contributions map Sheet 015. The map shows that the majority of properties in the visual vicinity of the site, within Oxford Street and Taylor Square are identified contributory items. Clause 3.9.6 addresses Heritage conservation areas and states, in part:
New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings.
(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to:
(a) topography and landscape;
(b) views to and from the site;
(c) significant subdivision patterns and layout, and front and side setbacks;
(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;
(e) the interface between the public domain and building alignments and property boundaries; and
(f) colour schemes that have a hue and tonal relationship with traditional colour schemes.
(2) New infill buildings and alterations and additions to existing buildings in a heritage conservation area are not to be designed as a copy or replica of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to the matters identified in (1)(a) to (e) above.
(3) Infill development is not to include garages and car access to the front elevation of the development where these are not characteristic of the area.
(4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area.
Clause 3.9.7 address Contributory buildings and states, in part:
(1) Contributory buildings are to be retained unless the consent authority determines the replacement is justified in exceptional circumstances.
(2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements.
(3) Alterations and additions to a contributory building are to:
(a) respect significant original or characteristic built form;
(b) respect significant traditional or characteristic subdivision patterns;
(c) retain significant fabric;
(d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandas, fences, chimneys, joinery and shop front detailing;
(e) remove unsympathetic alterations and additions, including inappropriate building elements;
(f) use appropriate materials, finishes and colours; and
(g) respect the pattern, style and dimensions of original windows and doors.
(4) Where an addition to the building is proposed, significant external elements are to be reinstated
The evidence
Mr Robert Staas provided evidence for the applicant. He states that heritage conservation objective (a) in cl 5.10 of LEP2012 is a broad aspirational statement. The subject building is not a heritage item identified in LEP 2012 even though site is located within the Conservation Area. The site is not identified as an archaeological site or an aboriginal place of heritage significance, therefore objective (c) and objective (d) do not apply, therefore objective (b) is only partly relevant.
The Statement of Significance does not refer to the existing visual character of Taylor Square and does not refer to advertising signage in any express way - either positively or negatively. The listing of the Conservation Area is not included on the State Heritage Register as being of State Significance.
In accepting that the site forms part of the Federation era reconstruction associated with the widening of Oxford Street in the early 20th century, the former Victorian era hotel was demolished and rebuilt at that time. The building then lost some of its original context and much of its original architectural character through the demolition of adjoining structures and through later modifications to its form and detail which took place throughout the 20th century. The contribution made by the building to the context within the Conservation Area was recognised at a time when the building was in its current mutilated form and with the existing roof sign having been in place for more than 50 years. Much of the early 20th century character of Taylor Square revolves around buildings with substantial roof signage which have been in place for much of the last 75 years, changing from painted wall signs to moving neon signs to fixed paper and subsequently vinyl signs. Signs in the immediate locality of the site have been retained and modernised over time.
Mr Staas states that nothing in the current proposal affects the identified heritage significance of the Conservation Area as set out in the State Heritage Inventory, nor does it change the established character which is created by the existing roof sign and its relationship to the contributory building. Consequently, the proposed sign does not detract in any material way from the identified heritage significance of the Conservation Area.
The existing sign is an existing use and will continue in place if the proposed development is refused approval. On this basis, Mr Staas has had regard to the impact of the proposed sign on any relevant heritage significance of the contributory building or the Conservation Area when compared to the current prevailing circumstances and the existing sign. In his opinion there are no relevant adverse impacts. Mr Staas considers there are no impacts for the following reasons
the proposed sign replaces an existing sign of more visual impact in Taylor Square and Oxford Street.
the new sign is substantially smaller than the existing sign both in size and in visible sign area.
the location of the new signage is moved to the north east away from the parapet of the hotel and its relationship to the streetscape in Oxford Street.
the enclosure of the existing supporting frame with new cladding material and colour is an improved visual outcome when viewed from the west looking to the site and from the east and south looking towards the sign. This improvement is also effected by the use of curved ends to the sign structure which are visually recessive.
the technology of the sign reduces light pollution.
any impact upon the heritage significance of the Conservation Area and upon this contributory building of the proposed sign over and above the existing sign is so slight as to be difficult to objectively identify. Advertising signage has been part and parcel of the Taylor Square streetscape for many decades.
Clause 3.9.7 of DCP 2012 for conservation areas, provides that contributory buildings are buildings that make an important and significant contribution to the character and significance of the heritage conservation area. They are supposed to have a reasonable to high degree of integrity and date from a key development period of significance to the Conservation Area. The council relies on the provision in DCP 2012 which seeks to remove unsympathetic alterations and additions, including inappropriate building elements and to reinstate lost elements. Putting aside the contribution that signage makes to the character and vitality of the precinct, the only application before the Court is for an enhancement of the existing approved sign, not for its removal or any additional works to the fabric of the hotel itself. The proposed development is associated with the change of technology in the outdoor advertising industry and will improve the existing streetscape and continue an historic use.
In relation to the concern of the council that the existing sign and structure do not have significance and detract from the heritage qualities of the building, streetscape and Conservation Area, Mr Staas states that advertising structures and signage has been part of the established character of this area for many decades. This approach is supported in the decision of Pearlman CJ in the South Sydney City Council v Nettlefold Advertising (1999) NSWLEC 21 where Her Honour, in her assessment of a similar sign at 217 Oxford Street, to the east of Taylor Square, stated that the signs played a legitimate part in establishing the historic development of the area and its current and evolving character.
Mr Staas concludes by stating that the proposed development is not considered to have any adverse impact on the heritage significance of the streetscape, Conservation Area or on the Oxford Hotel as a contributory building in that Conservation Area.
Mr David Logan provided evidence for the council. He states that the Oxford Hotel Heritage Inventory Assessment Report also contains a section titled Recommended Management which is a statement of the council's objectives for the site. Part 3.9.14(1) of DCP 2012 requires that development to a heritage item or within a heritage conservation area or special character area is to be consistent with the policy guidelines contained with the Heritage Inventory Assessment Report'.
The Recommended Management for the Oxford Hotel, included in the Heritage Inventory Assessment Report is as follows:
The building does not warrant listing as an individual heritage item on account of its diminished intactness. However, appropriate conservation action relating to its exterior may raise its significance to the threshold of potential heritage listing. • Notwithstanding its present condition, all conservation, adaptive reuse and future development should be undertaken in accordance with the Australian ICOMOS Charter for Places of Cultural Significance (The Burra Charter). • A Conservation Management Strategy should be prepared for the entire building to ensure that future change is managed in a coordinated fashion. • Retain and conserve all intact original external and internal building fabric and the external appearance of the building. • Retain and conserve original awning fabric. • Encourage owners to reconstruct the original tower and parapet detailing, based on available documentary and photographic evidence. • Encourage owners to remove paint from brick and stone surfaces within the principal facades. • Encourage owners to reinstate the balcony on the second floor. • There should be no further additions at roof level. Detailing of new fabric should respect the integrity and existing character of the building and its original fabric. • Investigate ways to encourage removal of the advertising sign on the roof of the building (emphasis added)
it would be more visually assertive/attention seeking than the existing static sign;
it would detract from the form and appearance of the existing building as a visually prominent corner building/contributory item within a highly significant historic area;
the (24 hour) internal illumination and regularly changing image would detract from the outlook from, and visual setting of, the adjacent Darlinghurst Courthouse site which is of State heritage significance;
it would detract from the historic character and significance of Taylor Square in which the vast majority of buildings are historic heritage items or contributory items;
it would be thicker/fatter than the exiting sign structure and the resultant boxier form would have a greater impact on the visual setting of the acclaimed Federation period streetscape on the northern side of Oxford Street, particularly in views from various locations on the south side of Oxford Street.
The proposed sign is inconsistent with the Recommended Management for the Conservation Area as it proposed additions to a contributory building that will be above awning level. The sign will not be located to the rear in areas of less significance, as encouraged, and will be visibly prominent from along Oxford Street and from Taylor Square.
The proposed sign would not respect the roofscape of the existing contributory item on which it is located, or the roofscape of the adjacent Federation period buildings in the streetscape on the northern side of Oxford Street. The latter Federation period streetscape has been identified as being of state heritage significance, yet the proposal would change and detract from the visual setting of that grouping. Both the front and rear of the sign would be visually prominent above the parapets of the existing buildings in a wide arc of views along the south side of Oxford Street. The sign would be particularly prominent within these views in the winter months when the deciduous trees lining both sides of the street have lost their leaves.
While it is acknowledged that, in views from the west along Oxford Street, the sign would be read with the existing sky sign on the roof of 191 Oxford Street, the latter sign would not be read in views towards the face of the new sign from Taylor Square, Darlinghurst Courthouse, Flinders Street or positions further to the east along Oxford Street. While there is no denying that the box-like (but static) sign at 191 Oxford Street has an adverse impact on the character of the heritage conservation area, its impacts are mostly from the west, unlike the proposed structure which is seen from a much wider range of views.
Findings
Heritage requirements for the proposed sign are found in LEP 2012, DCP 2012 and SEPP 64. Clause 5.10(4) of LEP 2012 requires, before granting consent, that the Court must "consider the effect of the proposed development on the heritage significance of the item or area concerned". DCP 2012 has a umber of requirements for contributory buildings and conservation areas. These are set out in the preceding paragraphs.
Clause 8 of SEPP 64 relevantly provides that:
A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:
(a) .
(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.
Schedule 1 relevantly states:
1 Character of the area
• Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?
• Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?
2 Special areas
• Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?
.
4 Streetscape, setting or landscape
• Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?
• Does the proposal contribute to the visual interest of the streetscape, setting or landscape?
• Does the proposal reduce clutter by rationalising and simplifying existing advertising?
• Does the proposal screen unsightliness?
• Does the proposal protrude above buildings, structures or tree canopies in the area or locality?
• Does the proposal require ongoing vegetation management?
5 Site and building
• Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?
• Does the proposal respect important features of the site or building, or both?
• Does the proposal show innovation and imagination in its relationship to the site or building, or both?
cl 3.9.6 of DCP 2012, in that the proposed sign is not designed to respect neighbouring buildings and the character of the area,
cl 3.9.7 of DCP 2012, in that alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements (cl 3.9.7(2)) and alterations and additions to a contributory building are to respect significant original or characteristic built form (cl 3.9.7(3)(a)),
pt 1 and pt 2 of Sch 1 of SEPP 64, and
parts of pt 4 and pt 5 of Sch 1 of SEPP 64.
[8]
Visual impact
The unacceptable visual impact of the proposed sign and other planning matters were raised by the council and expert evidence was presented by Dr Richard Lamb and Ms Belinda Barnett for the applicant and Mr Patrick Quinn for the council.
Their joint report provided little disagreement on the matters they addressed although I understood that the experts disagreed on the impact of the proposed sign on the desired future character of the precinct.
I am satisfied that this particular issue has been addressed by the heritage experts, given that the Statement of Significance for the Conservation Area clearly identifies the desired future character of the area around the site.
[9]
Road safety
The RMS maintains that the sign will materially diminish the ability of a driver to discern the presence of, and/or change in traffic control light nearby leading to an increased risk of collisions. Expert evidence for the RMS was provided by Mr David McTiernan and for the applicant by Mr Zoltan Bakovic.
The evidence
There are a number of separate matters that make up the different positions taken by the experts. These are:
Dwell time
Dwell time is the time that one digital image remains on the screen until the next image appears. Mr McTiernan and Mr Bakovic agreed that the dwell time was a factor that could potentially affect road safety. The shorter the dwell time the more opportunity there was for a driver to be distracted by the changing images on the digital screen. Mr McTiernan relied on advice from personnel from the RMS who offered dwell times of 30 seconds, 60 seconds and 24 hours over the course of the hearing. Mr Bakovic relied on the 45 second dwell time offered by the applicant which he considered generous when compared to the 10 second dwell time in the draft Guidelines.
Crash history
The relevant crash history for the intersection was addressed by Mr McTiernan and Mr Bakovic. They disagreed on the interpretation of the data and the effect of the proposed sign on the intersection of Flinders Street and Oxford Street Mr McTiernan maintains that the scope for considering recorded crash data approaching the site is too restricted and fails to adequately cover sections of Flinders and Oxford Streets where the existing billboard is both observable and comprehensible to approaching drivers. Regardless of how reliable it may be as an indicator of road safety risk, it is not possible to consider the outcome of a before and after study for this proposal since there is no after condition against which to evaluate the change. The reliance on the recorded crash history at the site under current operating conditions fails to take into consideration the fundamental difference between the existing and proposed digital billboard. For this reason, it is not appropriate to conclude that a lack of crashes under one operating regime will directly translate into the same outcome under a different operating regime.
Mr Bakovic comes to a different conclusion. He states that the crash data analysis area is larger than reasonably required for the intersection of Oxford Street and Flinders Street. In all likelihood, neither the existing sign nor the proposed sign would make any road safety impact on a driver travelling northbound on Flinders Street, before its intersection with Short Street. The available 2009-2013 crash data clearly indicate that the existing sign (and consequently, in all likelihood, the proposed smaller sign) does not increase the risk of collision between vehicles, and/or vehicles and pedestrians/cyclists, even at much closer locations to the Flinders Street and Oxford Street intersection, then e.g. south of the Short Street.
Mr Bakovic notes that Mr McTiernan originally only listed the crashes, and did not undertake a crash data analysis in order to provide any evidence to suggest that any of the recorded collision were in any way caused or contributed to by the presence and location of the existing sign. Even with the narratives of the crashes that were provided at the hearing, Mr Bakovic maintains that there is no evidence that the proposed sign will impact on the safety of the intersection.
RMS matrix
Mr McTiernan addressed the RMS Risk Assessment Matrix (the Matrix) for roadside advertising proposals (as well as cl 3.2.1 of the Guidelines and s 2.5.8 of the Draft Guidelines) to conclude that the proposed sign will pose a crash risk to motorists greater than the existing sign.
Mr Bakovic states that from his extensive experience in the area of risk assessment, using including various RMS and Austroads' risk assessment matrixes, he is aware that each and every risk safety assessment matrix is quite rigid, based on too few variables and thus not able to property calculate risk level. The proposed case is such an example. The application of the risk matrix is only a form of qualitative assessment, while quantitative analysis. e.g. crash data analysis is far more reliable.
Luminance
The draft Guidelines provide standards for the luminance of digital signs in Table 3 in s 2.5.8. The Guidelines in Table 4 provide more general requirements on illuminated signs. Mr Ryan Shamier, an architectural lighting designer, provided evidence for the applicant. The council provided no corresponding expert evidence although Mr Shamier was cross-examined on his evidence. Mr Shamier states that the proposed sign will have a maximum luminance level of 300 cd/sq m before 10pm and a maximum luminance level of 162 cd/sq m after 10pm. This level satisfies the requirements in Table 4 in s 3.2.5 of the Guidelines and Table 3 in s 2.5.8 of the draft Guidelines.
Obstruction of traffic lights
Mr McTiernan states that there is the risk that an approaching driver will not take appropriate action to slow or stop as directed by the traffic signal lanterns at the intersection of Flinders and Oxford Streets. This is a particular issue for traffic approaching along Flinders Street due to the following factors
there is a frequent occurrence of the primary signal lantern being blocked from the view of an approaching driver by route buses using the bus lane (Lane 1).
there is a high potential for the secondary and tertiary signal lanterns to also be blocked or obscured from the view of an approaching driver due to traffic in Lane 2 and Lane 3.
a digital billboard will backdrop the existing overhead signal lantern; this has the potential to distract a driver and/or diminish the effectiveness of the signal lantern.
Mr Bakovic states that he is unaware of the quantitative parameters which exist to support a conclusion that the location of the illuminated digital sign would materially diminish the ability of a driver to discern the presence of, and/or change in the traffic control signals, leading to any increased risk of collision between vehicles and pedestrians or other vehicles and bicycles. Based on the historical crash data provided, the probability of a crash occurring as a result of the illuminated digital sign is extremely low.
The duration that a driver is exposed to the proposed sign potentially diminishing the ability of a driver to discern the presence of and/or change in the traffic control signal, is not more than 3 seconds of travel time and so the exposure to this risk is very low. The likelihood of an adverse event, the product of the probability and the exposure is therefore very low.
Mr Bakovic also states that traffic signals have an inherent safety margin built in to the signal plan. This safety margin is provided by what is known as inter-green time. When a traffic signal changes, there is a yellow interval of approximately 4 seconds to warn approaching drivers that the green phase is terminating and then an all-red interval of approximately 2 seconds to enable vehicles within the intersection to clear the controlled area. This gives a safety margin of approximately 6 seconds. The proposed sign would not have any impact on road user safety on Oxford Street, and would not lead to an increased risk of collision between vehicles and pedestrians or other vehicles, including bicycles;
As the proposed sign is smaller than the existing sign, any future overlapping would start later than is currently the case and may finish earlier which would shorten the overlapping time. Consequently, the proposed sign will have a lesser impact on road safety for those using Flinders Street when compared to the existing sign, and would not lead to an increased risk of collision between vehicles and pedestrians or other vehicles, including bicycles
There are no traffic control signal lanterns visually in front of or overlapping the existing sign nor is there any such overlap in front of the proposed sign when approaching the intersection from Oxford Street. The proposed sign would not materially or unacceptably increase the risk of collision between vehicles and pedestrians adjacent to and/or crossing the road, or between vehicles and other vehicles, including bicycles.
Findings
Clause 8 of SEPP 64 provides that:
A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:
(a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and
(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.
The objectives of this Policy as set out in clause 3 (1) (a) are:,
(1) This Policy aims:
(a) to ensure that signage (including advertising):
(i) is compatible with the desired amenity and visual character of an area, and
(ii) provides effective communication in suitable locations, and
(iii) is of high quality design and finish, and
[10]
Driver distraction
The issue of driver distraction falls within the general area of road safety but was a matter addressed as a distinct issue by the applicant and the RMS. The RMS maintains that the sign will potentially materially divert a driver's attention, both visually and cognitively, from the task of operating a motor vehicle leading to an increased risk of collisions. Expert evidence for the RMS was provided by Professor Michael Regan and for the applicant by Professor Simon Washington. Professor Regan and Professor Washington have impressive curriculum vitae's and broad world-wide experience in road safety crash investigation although from different perspectives. Professor Regan is a psychologist and Professor Washington is an engineer.
Mr McTiernan and Mr Bakovic also addressed the question of driver distraction and supported their respective experts, although greater focus was given to the evidence of Professor Regan and Professor Washington on this particular issue.
Driver distraction - the evidence
Professor Regan and Professor Washington agree that a "diversion of attention" can be involuntary or voluntary. There is evidence that, in many situations, drivers can "self-regulate" driving to compensate, fully or partly, for the effects of distraction. They also agree that the specific design attributes (including content) and location of electronic billboards will determine whether or not and to what extent they distract drivers.
Professor Regan states that when a driver's vision is focused on an advertising billboard, it is no longer focussed on information critical for safe driving. This will interfere in some way with activities critical for safe driving, even if the interference is not observable, because the human eyes cannot fixate simultaneously on objects in different locations in the visual field.
Electronic billboards are designed to change, so that they can convey more than one advertisement as a driver passes by them. In doing so, there is evidence that they attract visual attention more frequently, and for longer, than static billboards. Professor Regan distinguishes between the historic buildings and advertising flags at the intersection of Oxford and Flinders Streets which are static and does not change in content as drivers drive past them and the proposed sign that changes on a regular basis.
In relation to academic research on electronic billboards, Professor Regan states that standardisation across driver distraction research studies in the definition of distraction, in the methods that have been used to measure its impact, in the environments and traffic scenarios in which it has been studied, and in the manner by which studies have controlled for extraneous variables have led to different results for the measurement of its impact. Evidence of this lack of standardisation may be found in both non-peer reviewed and peer reviewed studies, and in reputable journals.
The best study seen by Professor Regan on the impact of advertising billboards on driving performance and safety is the study by Smiley et al (2005). Dr Smiley used 5 separate research methods in a single study to address the issue; an eye- tracker study, a traffic conflict study, a study of changes in vehicle behaviour before-and-after crash study and a public survey of driver opinion on the safety of video advertising signs. It was the converging pattern of evidence from all these studies that enabled her to come to the conclusion that "it cannot be concluded at this point in time that video advertising signs are either safe or unsafe". In coming to this conclusion Dr Smiley found a trend towards more crashes after erection of a video advertisement, but the finding was not significant.
In the question of the relationship between electronic billboards and crashes, Professor Regan accepts that any relationship is difficult to prove for a number of reasons, such as:
lack of physical evidence of distraction compared to other causes such as drink driving,
lack of identification of distraction as a specific code in police accident reporting forms,
drivers are reluctant to identify distraction as a cause of an accident, and
drivers are unaware that distraction was the cause of an accident.
For these reasons, distraction is likely to be under reported.
Dr Regan states that the existing billboard is effective in attracting the attention of drivers, especially on the Flinders Street approach. This is confirmed by the eye tracking data, involving a limited sample of experienced drivers. The potential for the existing sign to attract attention is considered highest at two critical locations when approaching it from Flinders Street (Patterson Lane to Oxford Street and the intersection of Flinders Street and Oxford Street) and one from Oxford Street (the intersection of Oxford Street and Flinders Street). The eye tracking data confirm that attention is attracted by the existing billboard at these locations.
The existing billboard has potential to interfere with activities critical for safe driving for the following reasons:
it is designed to attract and capture attention, and did so for 70% of the drivers in the eye tracking study,
it is located at a site at which demands on drivers' limited attention are already high, leaving little spare attention available to attend to and comprehend the sign,
the sign is located such as to draw motorists' attention away from the forward field of view, especially as they approach the intersection of Oxford and Flinders Streets, and
the sign is located at a site high in visual clutter, which may hinder the apprehension of driving-relevant information in close the proximity of the sign.
The present billboard is likely to be increasing road safety crash risk for some drivers, by virtue of its demonstrated ability to divert attention away from activities critical for safe driving (up to 4 times on approach to the billboard, and for considerable periods of time), without some drivers even being aware that it has.
Advertising billboards are among a number of objects, events and activities external to the vehicle which, collectively, have potential to divert attention away from activities critical from safe driving and, in doing so, have been shown in previous research to increase crash risk by up to 3.7 times.
A number of crashes have occurred on both approaches to the existing billboard at the locations at which the potential for the existing sign to attract attention is judged to be highest. As yet, there have been no crashes recorded in which the existing billboard is cited as a contributing factor. Although Professor Regan cannot be certain, this may be because crash risk from the existing billboard is low, because motorists can self-regulate driving to compensate for the risk, because motorists are not aware when they are distracted by the sign (the eye tracking study has confirmed this as a possibility), or because police do not question the role of the billboard in recorded crashes.
While there is no direct evidence that distraction from the existing billboard caused any of these crashes, six of the crash types that have occurred are consistent with the types of crashes that might be expected when a driver diverts attention away from activities critical for safe driving at those locations.
There is limited evidence on the proportion of crashes, as a proportion of all crashes, attributable to distraction from advertising billboards data from two studies - Gordon (2005, crash data analysis) and Klauer et al (2006)), naturalistic driving study) suggest that around 1 % of all crashes are advertising billboard related.
Dr Regan states that some studies have found no demonstrable increase in risk associated with the presence of electronic billboards (eg McMonagle, 1952; Tantala and Tantala, 2007; Wallace, 2003) however Dukic et al, (2014) used an instrumented vehicle to measure the impact on driving performance of electronic billboards versus conventional traffic signs and a static billboard, and recorded six eye glance fixations on the digital billboard lasting more than 2 seconds, indicative of a doubling of crash risk.
Others studies have demonstrated an increase in crashes in the presence of electronic billboards are that:
Farbry et al. (2001) found an increase in sideswipe and rear-end crashes, and
Gitelman et al. (2010) found that crashes reduced by 60% at treatment sites (where billboards were visible in the before period but covered during the after period).
In a review paper, Cairney and Gunatillake (2000) concluded that a greater density of advertisements correlates with a higher crash rate, especially for changeable-message advertising signs.
Farbry et al (2001) reviewed 9 studies that investigated the impact on safety of electronic billboards and found that most studies found higher crash rates associated with the presence of electronic billboards.
In a review paper, Hatfield (2005) concluded that there is a small impact of roadside advertising on crash rates, particularly if they feature bright lights or motion, are located at intersections or in otherwise complex road situations.
In another review, Wachtel (2009) concluded that research studies that have been rigorously designed, controlled, conducted, and analysed suggest that a relationship between roadside billboards and traffic safety is present, and that safety is adversely affected by such billboards.
Wachtel (2009) further concluded:
The findings pointed to an adverse effect when billboards were bright, close to the roadway, and visible to approaching drivers for considerable distances; and when they were located near intersections, interchanges, or horizontal curves. Further, when the driver's task demands were elevated, as might be the case in heavy traffic, adverse weather, or with challenging traffic movements (lane drops, merges, etc.), the more robust research seemed to show the potential for adverse safety impacts from roadside billboards.'
From these (and other studies) Professor Regan draws the following conclusions:
advertising billboards attract attention, involuntarily and voluntarily - although not from all drivers, and not in all situations,
electronic billboards attract more attention than conventional billboards and regular traffic signs,
advertising billboards that attract attention involuntarily may compromise a driver's ability to self-regulate in response to distraction,
advertising signs can impair drivers' ability to isolate and respond quickly to driving-relevant information, especially for older drivers,
advertising billboards interfere more with activities critical for safe driving when they are sited at locations where the demands on drivers' limited attention are already high,
advertising billboards (conventional and electronic) have been found to interfere with activities critical for safe driving in most studies,
some studies have found a relationship between the presence of advertising billboards (conventional or electronic) and crashes; others have not,
there is a small impact of roadside advertising on crash rates, particularly if they feature bright lights or motion, are located at intersections or on otherwise complex road situations, and
street level advertisements attract more attention than raised advertisements when drivers are instructed to look for hazards.
Professor Washington, on the other hand, states that visual distraction is a necessary but not sufficient condition for a distraction related crash to occur. To establish that people look more often at things placed in their visual environment is not at all surprising, and does not establish a causal link to crashes. If a historic building is near the road, people will likely look at it more often. The advertising flags near the site are likely to attract much attention from drivers. A key question is whether drivers divert their attention away from critical driving tasks when distracted. It is not only where driver's vision is diverted to, but also when and where drivers' vision and/or attention is diverted from, that is necessary to establish an increase in crash risk. Even when this necessary pre-condition is present, it is still not sufficient to cause a crash.
Professor Washington states that another key question is whether the distraction poses a cognitive load, and whether the distraction can be self-regulated or managed. There are numerous potential distractors in a driver's visual field of view. Drivers regularly manage potentially thousands of distractions each time a person drives a vehicle.
Professor Washington states that different levels of peer review and rigor determine the credibility of a study. An experimental design of a study has an enormous impact on its credibility and usefulness in Court as well as in the academic literature. The most reliable studies are carefully conducted peer reviewed before and after studies with crashes as the outcome measure. There is a long list of factors that have been shown to have statistically significant impacts on road safety with carefully conducted before-after studies, including but not limited to automated speed enforcement programs, rumble strips, signal backplates, red light cameras, shoulder paving, adding passing lanes, accident warning signs, cable median barriers, fog warning signs, etc.
Professor Washington states that the evidence linking electronic billboards to crashes is lacking. Accepting that there is evidence linking electronic billboards to distraction, but distraction is only one of several conditions sufficient to cause a crash. If increased crashes are the "smoking gun" needed to link electronic billboards to safety, then in his opinion, quality evidence is lacking.
Even accepting that distraction by electronic billboards, under the worst of circumstances, poses some but relatively relatively small risks. Professor Washington addresses what he describes as four recent high quality before-after evaluations about the safety impact of electronic billboards in particular four in Canada, Greece and Sweden.
Study 1: This Canadian study aimed to understand the safety impacts of Static Electronic Signs (SES) (Izadpanah et al. 2014). The authors found a 4% reduction in crashes after installation of SES, but this reduction was not statistically significant. The authors conclude:
"There is not enough evidence to suggest that these signs have any impact on safety"
the best available evidence is provided by carefully controlled before-after evaluations of sites, with control groups, sufficient crash histories, and sophisticated analysis methodologies.
consistent 'best available' evidence does not support a negative safety impact of the proposed LED conversion. On the contrary, recent 'best available' evidence consistently reveals a significant lack of safety effect of electronic billboards.
the theorized proportion of crashes where electronic billboards may contribute to their occurrence is very small, 1/10th the crash risk caused by sneezing, coughing or itching, and 1/187th the crash risk caused by talking with passengers or children.
there is no evidence that pedestrians or bicyclists are at increased risk near to electronic billboards or at the proposed site.
drivers process a variety of inputs and prioritise matters which require their attention. Evidence suggests that drivers can choose not to look at electronic billboards and focus on the driving task.
the proposed electronic billboard does not pose an increased crash risk to motorists, pedestrians, or cyclists, compared to the existing sign and intersection configuration.
Driver distraction - findings
In this case, the matter of driver distraction needs to be addressed in two distinct areas, firstly, the academic research on the topic and secondly, how this research relates to the particular characteristics of the subject intersection.
Professor Regan and Professor Washington adopt different approaches to the question of billboards and road safety. In general terms, Professor Regan adopts the approach that any advertising provides the opportunity to distracted whereas Professor Washington concludes that, at worst, any distraction by billboards is minor and not a problem given the range of other distractions that occur when driving. In accepting that the some literature does show a risk but if there is a risk, that risk is acceptable. Professor Washington also advocates that the benefits of advertising also need to be considered as part of any assessment process.
On the academic research, the amount of information provided to the Court was large by any measure; some 27 academic reports in two volumes containing some 1200 pages although not all reports were addressed by Professor Washington and Professor Regan. I am not sure that the academic rigour needed to satisfy Professor Regan and Professor Washington of the quality of the academic research translates well into the more practicable question that the Court is required to answer on the effect of billboards on road safety at Taylor Square. Many of the studies had unique characteristics that made a direct comparison with the site unacceptable. For example, the only study addressed and relied upon by both Professor Regan and Professor Washington was Smiley et al (2005). This study is around 10 years old and relates to digital billboards rather than the type proposed in this application. Professor Regan and Professor Washington both raised concerns over the quality of different academic reports for reasons such as poor methodology or inadequate peer review but it is beyond the scope of these proceedings to delve into the academic reports to the level needed by Professor Regan and Professor Washington to gain even qualified agreement.
While the evidence of Professor Regan and Professor Washington occupied a significant part of the proceedings, it seems that the underwhelming conclusion is that based on the academic research; the relationship between billboards and road safety is inconclusive.
However adopting a common sense and conservative approach, the placement of a digital sign in the location and the size proposed in this application could reasonably lead to a conclusion that there is an increased risk of a motor vehicle accident. Professor Washington accepted such a conclusion but qualified any risk as being acceptable. On that basis Professor Regan's conclusions are more apt. It must be accepted that advertising billboards attract attention, involuntarily and voluntarily - although not from all drivers, and not in all situations and that advertising billboards that attract attention involuntarily may compromise a driver's ability to self-regulate in response to distraction.
[11]
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development Application D/2014/1002 for the replacement of an existing static sign with a digital sign on the roof of the Oxford Hotel at 134 Oxford Street Darlinghurst is refused.
3. The exhibits are returned with the exception of exhibits 6, 1R, A and C.
G T Brown
Acting Senior Commissioner
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 July 2015
Mr Logan states that council has identified that the existing sign detracts from the character of the site and its desired future character. The council's policy is to encourage the removal of the advertising sign from the roof of the building. The proposed development is clearly inconsistent with the desired future character, as defined by council.
Mr Logan rejects the presumption of the applicant that the existing sky sign has heritage significance as a part of a number of signs of various type and size that have been in place on the building for over 50 years. He notes that the existing 'billboard' type structure dates from around 1990. There were previous billboard signs on the roof from around 1980. Prior to that, there was an A-frame neon-type sign, possibly dating from the 1950s. It appears that construction of this sign involved the dismantling of the original corner tower and cupola structure that was an important part of the character of the building. Further, the 'A-frame' was an open, transparent type of structure that was very different in scale, form and character to the proposed LED structure.
The history of signage associated with the site does not contribute to the overall significance of the Oxford Hotel, Oxford Street or Taylor Square. Therefore, it should not be used as a precedent to justify approval of the proposed sign, particularly in light of the council's stated policy to encourage removal of the advertising site from the roof of the building in order to enhance its contributory value.
The proposed sign will not result in the retention of an appropriate visual setting or relationship with the Oxford Hotel, Taylor Square and the Conservation Area. The existing sign detracts from the appearance of the building when viewed from various parts of Oxford Street and Taylor Square. It reads as a vertical extension of the building, thus altering its form, and detracts from its skyline and streetscape character. Similarly, the new sign would detract from the form and visual setting of the existing building as well as the historic context of the streetscape and the Conservation Area.
Consistent with cl 3.9.7 of DCP 2012, the Oxford Hotel contributes to the character and significance of the Conservation Area. The building has a reasonable to high degree of integrity and dates from a key development period of significance of the heritage conservation area. Mr Logan states that the Oxford Hotel makes an important contribution to the streetscape, being located at the highly prominent intersection of Oxford Street and Flinders Street, at Taylor Square and contributes to the character of the Conservation Area despite the alterations to its fabric. It also contributes historic values being from a significant historical period.
Clause 3.9.7 of DECP 2012, in relation to contributory buildings, states, in part:
(1) .
(2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements.
(3) Alterations and additions to a contributory building are to:
(a) respect significant original or characteristic built form;
(b) .
(c) .
(d).
(e) remove unsympathetic alterations and additions, including inappropriate building elements;.;
(f) .
(g).
(4) Where an addition to the building is proposed, significant external elements are to be reinstated
The proposal would result in the removal of the existing unsympathetic sign, consistent with these requirements. However, the proposal to replace it with a new form of sign incorporating an LED screen would be more visually disruptive and inconsistent with these requirements, in particular (2) and (3)(a). The proposed LED sign would significantly alter the visual setting of the Oxford Hotel on its two principal facades. It would not respect the significant original character or built form of the Oxford Hotel. Further, it would prevent the reinstatement of the previous removed external elements, in particular the significant original corner tower/cupola, which the Council's policies seek to reconstruct.
In failing to provide an appropriate visual setting for the contributory item as well as adjacent contributory items and heritage items, the proposal would be inconsistent with objectives (a) and (b) in cl 5.10 of LEP 2012. Further, the proposal would be inconsistent with the relevant requirements in contained in part 3.9.7 of DCP 2012:
Mr Logan maintains that the proposed sign will have a range of heritage impacts on the conservation area, such as :
In considering the competing evidence and with the benefit of a site inspection, I agree with the conclusions of Mr Logan for a number of reasons. First, it must be acknowledged that the Oxford Hotel is within a conservation area and is a contributory building. The requirements in DCP 2012 provide an extra level of scrutiny for the proposed sign. Clause 3.9.7 of DCP 2012 for conservation areas, provides that 'Contributory Buildings' are buildings that make an important and significant contribution to the character and significance of the heritage conservation area. This ability to contribute to the Conservation Area is also recognised in the Recommended Management for the Oxford Hotel included in the Heritage Inventory Assessment Report where it states:
The building does not warrant listing as an individual heritage item on account of its diminished intactness. However, appropriate conservation action relating to its exterior may raise its significance to the threshold of potential heritage listing.
The unsuitability of a sign on the roof of the Hotel is also addressed in the Recommended Management for the Oxford Hotel where it states:
Investigate ways to encourage removal of the advertising sign on the roof of the building
I agree the proposed sign will unacceptably alter the visual setting of the Oxford Hotel on its two facades. It would overpower and create a dominant feature directly above the Oxford Hotel, marginalising and diluting the significant original character and built form of the Oxford Hotel on a visually prominent corner of the Conservation Area. The proposed sign would also detract from the historic character and significance of Taylor Square where the vast majority of buildings are historic heritage items or contributory items.
I have little trouble in concluding that a sign of the size proposed in this application would be contrary to the character and significance of the Conservation Area.
Second, and while Mr Staas placed some emphasis on the existing roof signage approved by the Court at 217 Oxford Street, to the east of Taylor Square, I do not accept that the approval for this sign provides any basis for the approval of the proposed sign. It was approved some 16 years ago under a different planning regime and different circumstances than currently exist. The planning documents of the council reflect the current approach of the council.
Importantly, the Conservation Area Statement of Significance makes no reference to roof-top signage as part of the heritage significance of the Conservation Area. The significance is based on Oxford Street as a main artery connecting the centre of Sydney with the coast, buildings of national and state significance, buildings designed by important nineteenth and twentieth century architects and sections of Oxford Street that contain homogenous and intact streetscapes. I agree with Mr Logan that these important qualities of the Conservation Area will be unacceptably impacted upon by the proposed sign.
Third, the roofscape is an important matter in assessing the impact on the heritage significance of the Conservation Area. This was a matter accepted by Mr Staas. Clause 3.9.6 addresses heritage conservation areas and states, in part:
New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions.
Also, cl 3.9.6(1) provides that development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing "the heritage conservation area statement of significance and responding sympathetically to…roofscape, of adjoining or nearby contributory buildings";
I accept Mr Logan's evidence that the proposed sign would not respect the roofscape of the existing contributory building on which it is located, or the roofscape of the adjacent Federation period buildings in the streetscape on the northern side of Oxford Street.
Fourth, the evidence of Mr Staas relied largely on the false presumption that the impact of the proposed sign should be assessed on the basis that the existing sign was part of the consideration of heritage impact. I have found that this incorrect and that an assessment under s 79C is required for the proposed sign. While Mr Staas was cross-examined on his approach, no clear response was provided to the question of whether an assessment of the proposed sign under s79C would warrant the refusal of the application, on heritage grounds. Mr Staas did state, however that it was his opinion that the council's controls were biased against roof-top signage.
For the reasons in the preceding paragraphs, I find that the proposed sign is contrary to objective (b) of cl 5.10 of LEP 2012, in that the proposed sign does not conserve the heritage significance of the Conservation Area as identified in the Statement of Significance.
I am satisfied that the inconsistency with objective (b) and the the effect of the proposed development on the heritage significance of the Conservation Area, in accordance with cl 5.10(4), is so significant that these matters warrant the refusal of the application for this reason alone.
I am also satisfied that the following inconsistencies further support the refusal of the application for heritage reasons:
Schedule 1 relevantly states:
8 Safety
• Would the proposal reduce the safety for any public road?
• Would the proposal reduce the safety for pedestrians or bicyclists?
• Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?
Clause 8 requires the Court to be satisfied that the proposed sign would not "reduce the safety for any public road" or "reduce the safety for pedestrians or bicyclists" or "reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas" otherwise development consent must not be granted. The evidence focussed largely, but not exclusively, on the first two dot points; the safety of the intersection of the Flinders Street and Oxford Street and the safety for pedestrians or bicyclists using the intersection.
Even though the proposed sign is a prohibited by SEPP 64 and relies on existing use rights, cl 8 still applies. The assessment under SEPP 64 must be on the basis of the likely impacts of a new sign structure rather than a comparison with the existing sign.
The Guidelines do not specifically address digital signs but, at s 3, address Advertisements and road safety. Section 3.1 addresses Road Safety Objectives, s 3.2 addresses Road safety Assessment Criteria with s 3.2.1 addressing Site location and design by providing a range of criteria (s 3.2.1 (a) to (l)). Digital signs are specifically addressed in the Draft Guidelines with additional criteria at s 2.5.8.
To answer the question posed by cl 8 of SEPP 64, I am satisfied that that the proposed sign would "reduce the safety for any public road" and "the safety for pedestrians or bicyclists" to an unacceptable level for two principal reasons and not for all the reasons suggested by Mr McTiernan.
First, the appropriate dwell time for the proposed sign was a matter that was not satisfactorily resolved, in my view, and is an important matter that leads to a lack of satisfaction to the first two dot points in pt 8 of Schedule 1. Given that the dwell time has a very important function as it has the potential to increase distraction (for shorter dwell times) or decrease the potential for distraction (for longer times) the expert evidence was unhelpful, at best. Mr Bakovic offered no helpful evidence beyond stating that the 10 second standard in the draft Guidelines was undoubtedly prepared by qualified persons in the RMS and that he saw no reason to question it. As the applicant would accept a dwell time of 45 seconds, Mr Bakovic saw no issue with a 45 second dwell time based on the dwell time in the draft Guidelines. Mr McTiernan's evidence was no more helpful as he relied totally on instructions from personnel in the RMS. He simply repeated his instructions to the Court. These instructions were reflected in the conditions of consent where the RMS sought, over the time of the hearing, dwell times of 60 seconds, 120 seconds and ultimately 24 hours with a change-over of signs at 3.00am. The RMS response, via Mr McTiernan, appeared as some whimsical game of numbers designed to frustrate the application rather than provide a professional response to a very important question. The 24 hour dwell time finally proposed by the RMS was, in effect, tantamount to the refusal of the application.
Their response was more difficult to accept given the agreement of the RMS to much shorter dwell times for other digital signs on RMS land, even considering the complexity of the subject intersection. As the evidence unfolded, it was clear that Mr McTiernan (or his company) had been involved in the peer reviewing of applications for digital signs for the RMS, including dwell times. It must be accepted that Mr McTiernan had the knowledge and experience to address the question of appropriate dwell times but it appeared that he was restricted by his instructions from the RMS. The matter of dwell times may have been resolved if the RMS has taken the time to provide a proper response to the question of an appropriate dwell time.
In coming to this conclusion, I accept that the onus of satisfying the Court as to the suitability of the application rests with the applicant, however the evidence of both Mr McTiernan and Mr Bakovic provided little, or no guidance on this important issue. I have placed no weight on the recommended 10 second dwell time in the draft Guidelines and relied upon by Mr Bakovic. Mr McTiernan and Mr Bakovic both agreed that the 10 second dwell time was a simplistic response to a complicated issue and that safety went far beyond a dwell time based on the speed of the road where the digital sign is located. They went as far as saying that the dwell times in the draft Guidelines were incorrect for their respective speeds.
Second, the evidence of Mr McTiernan and Mr Bakovic on the potential safety risks at the intersection is difficult to assess because much of the evidence (particularly the evidence of Mr Bakovic) focussed on the difference between the existing sign and the proposed sign. For example, Mr Bakovic places emphasis on the fact that the advertising area of the proposed sign is smaller than the existing sign (and was critical of Mr McTiernan for not acknowledging this fact in his evidence). Even if this was the correct approach, I am not sure that this is a matter that supports the approval of the sign. The difference in advertising area between 54.59 sq m and 95.55 sq m is significant in numerical terms but far less significant from a driver's point of view given its illumination and prominent location on a building at the intersection of two significant and busy roads.
If considered in this context, I generally adopt the comments of Mr McTiernan. If the proposed sign was to be erected, I accept that it would have a strong likelihood of capturing a driver's attention at critical points along both Flinders and Oxford Streets. The potential impacts are drifting from one lane to another and the risk of a collision with adjacent vehicles, rear-end type collisions and failure to observe pedestrians crossing at midblock locations and the intersection. This has the potential to adversely affect activities critical to safe driving at these locations. Added weight to this comes from the poor accident history of the intersection and high vehicle and pedestrian activity at certain times.
On other matters raised by Mr McTiernan and Mr Bakovic, much evidence was provided on the ability or inability of drivers to view the safety lanterns at the intersection. I understood from the evidence that the sign would be visible from Oxford Street and Flinders Street although the approach from Oxford Street had a higher potential for safety impacts. Mr McTiernam maintained that the ability to view the three existing signal lanterns from Oxford Street could potentially be blocked thereby creating a significant safety issue. Mr McTiernam claims that the primary signal lantern could be blocked from the view of an approaching driver by buses using the bus lane in Lane 1, the secondary and tertiary signal lanterns could be blocked or obscured from the view of an approaching driver due to traffic in Lane 2 and Lane 3 and the proposed sign will backdrop the existing overhead signal lantern, thereby making it difficult for drivers to identify.
Mr Bakovic accepts the potential for Mr McTiernan's scenario to occur but dismisses the likely occurrence as being "extremely unlikely". As a distinct issue of all three traffic signals being unable to be read at one time by approaching motorists, I agree with Mr Bakovic. For all three traffic lights not to be visible to motorists the following events would need to happen concurrently; a bus would need to be stopped in Lane 1, a bus stopped in the bus lane travelling in the opposite direction along Oxford Street, the proposed sign would be displaying a sign that would have red directly behind the overhead signal lantern, the red shown on the sign was approximately the same colour as the red signal and the black backboard to the traffic lantern could not be distinguished. In my view, this extremely low likelihood of this occurrence would not be a reason to refuse the application.
While acknowledging the draft Guidelines, Mr Bakovic did not specifically address this document in his individual statement of evidence, although evidence was adduced on this document during cross-examination. Instead Mr Bakovic conducted a road safety audit in accordance with the RMS Guidelines for Road Safety Audit Practices (2011), Austroads Guide to Road Safety - Part 6 ; Road Safety Audit (2009). He also addressed pt 8 of Schedule 1 of SEPP 64 and cl 3.2.1 of the Guidelines for his conclusion that the proposed sign "will have no significant or discernible adverse impact for road users and road safety".
Mr Bakovic was also criticised for not addressing the Matrix although I do not accept that all the criticism is warranted. The Matrix is not identified in the Statement of Facts and Contentions filed by the RMS and it is not a publically available document. I am not satisfied that the absence of any response necessarily significantly weakens Mr Bakovic's evidence to the point where it should be disregarded. The areas of concern identified by Mr McTiernan in the Matrix are addressed Mr Bakovic in the joint report or by other experts in relation to driver distraction. For example, of the eight considerations in the Matrix (A-H) Mr McTiernan identifies considerations B, C, and D as having an unacceptable impact on the Oxford Street approach and considerations B and C as having an unacceptable impact on the Flinders Street approach. The considerations are:
B - Sign Positioning relative to travel direction.
C - It distracts a driver at a Critical time.
D. -It interferes with the effectiveness and safety of a traffic control device (e.g. traffic signs, traffic signals or other traffic control devices)
Each consideration has a Guide to Risk with the lower risk starting at 1 and the higher risk finishing at risk 5. Mr McTiernan identifies considerations B at risk 3, C at risk 4, and D at risk 2 for the Oxford Street approach and considerations B at risk 4 and C at risk 2 for the Flinders Street approach.
Mr McTiernan's evidence is that each of the identified considerations and risk "is considered a high risk or to have a high likelihood for a potential adverse impact on road safety performance". This was not a conclusion accepted by Mr Bakovic or by the applicant's expert on driver distraction.
Consideration C and D are genuine contentions and subject to much evidence and consideration B is a matter that, by itself, was not addressed by the experts in any detail. They are subjective matters that both experts addressed in different forms during the hearing.
On the matter of illumination, and while Mr Shamier was cross-examined in some detail, I am satisfied that nothing was raised to suggest his conclusions were not sound. Additional matters raised during the hearing about luminance could be additional conditions of consent without affecting Mr Shamier's conclusions. I am satisfied that that the signage the subject of the application satisfies the assessment criteria specified in pt 7 of Schedule 1, namely.
7 Illumination
• Would illumination result in unacceptable glare?
• Would illumination affect safety for pedestrians, vehicles or aircraft?
• Would illumination detract from the amenity of any residence or other form of accommodation?
• Can the intensity of the illumination be adjusted, if necessary?
• Is the illumination subject to a curfew?
Study 2: Professor Washington describes this study as perhaps the most comprehensive, extensive study of electronic billboards (EBBs) and was conducted in Canada by top road safety researchers globally (Smiley et al. 2005). The overall conclusions of the study included:
"...it cannot be concluded at this time that video advertising signs are safe or unsafe".
"....the evidence from the headway and speed, conflict, and crash studies was not consistent as to the traffic safety impact, suggesting that for the particular signs studied, overall impactson traffic safety are likely to be small".
Study 3: the study provided a before-after analysis of the safety effect of "regular" advertising signs on road safety in Greece (Yannis et al. 2013) where 9 test sites in metropolitan Athens, Greece, were examined for their effect on safety after installation or after removal.
The authors made the following conclusions:
"Both exhaustive literature review and the statistical analysis carried out in the present research suggest that there is no statistical correlation between road accidents and advertising signs at the microscopic level".
"Taking into account [the results], no detrimental effect of advertising signs on road safety is expected".
Study 4: A study conducted by researchers at the Swedish National Road and Transport Research Institute (Dukic et al. 2012) aimed to examine the safety effects of EBBs on a 3 lane busy motorway in Stockholm as part of a trial. The authors made the following conclusions:
● "Overall the EBBs attracted more visual attention than the other traffic signs included in the study".
● "For the performance indicators investigated in the present study, no differences were found between daytime and night-time driving".
● "Because the drivers' glances did not appear to be drawn to the EBBs invariably, it can be assumed that drivers have a choice, at least to a certain extent, of whether to look at the EBBs or not".
● "No significant changes in driving behavior with respect to speed, lateral placement of the vehicle, or headway could be found between the phases before the billboard was visible, while it was visible and after it was passed".
● "The data can be interpreted such that those drivers who are under-stimulated by the traffic situation look around for entertainment, which is provided by the EBBs".
● "It is theoretically possible that performance was reduced somewhat when drivers looked at the EBBs intensively, but not enough to lead to conflicts".
Professor Washington states that as an expert on road safety, and having spent two decades focused on reducing fatalities and injuries on US and Australian roads, he has have examined the best available evidence regarding the safety impacts of electronic billboards. From this review and his experience and ability to examine crash data, leads him to concludes that:
While Professor Washington is correct in that billboards are only one of the many likely causes of distraction to motorists and that the research indicates that there are many other sources likely to have a greater impact than billboards: that response is not necessarily responsive to the question that the Court is required to answer. The relevant questions being those posed by pt 8 in Sch 1 of cl 8 of SEPP 64 is:
• Would the proposal reduce the safety for any public road?
• Would the proposal reduce the safety for pedestrians or bicyclists?
This leads into the second matter; the particular characteristics of the subject intersection. I accept that the crash data and narratives do not provide any useful information on the cause of the crashes when considered in the context of potential distraction of drivers from the existing sign. As explained at the hearing, the coding of crash reporting does not necessarily identify distraction from signage, as a source of a crash, even if a person chose to identify this as the reason for the crash.
I am also satisfied that Professor Regan, in a submission to the Joint Standing Committee on Road Safety (Staysafe) Inquiry into Driver and Road User Distraction, (Regan et al (2012)) provided a sensible and relevant response to the question posed by pt 8 in Sch 1 of cl 8 of SEPP 64. In reviewing the available scientific literature on the safety implications of roadside advertising signs, including studies on electronic signs and the type of intersection where the sign is located (Friswell, Vecellio, Grzebieta, Hatfield, Mooren, Cleaver, & De Roos, 2011; Friswell, Vecellio, Grzebieta, Mooren, & Hatfield, 2010; Hatfield, 2005, 2008) as well as other Australian and international reviews (Farbry, Wochinger, Shafer, Owens, & Nedzesky, 2001; Horberry, Regan, & Edquist, 2009; Wachtel, 2009; Wallace, 2003a) Professor Regan came to the following conclusions (pp 7-8):
'i) Advertising signs may pose a particular safety hazard when they are sited at locations where the demands on drivers' attention are already high. For example, high attentional demand might occur in areas where drivers need to continuously monitor many or unpredictable elements of the driving environment such as the movements of multiple road users like pedestrians, crossing, merging or turning traffic, traffic controls like traffic lights and complex road geometry.
Even If it is accepted that the academic literature does not provide comprehensive support for a link between electronic billboards and reduced road safety, care must be taken in ensuring that the erection of an electronic billboard is not located where it could exacerbate an already unacceptable traffic and safety situation. In this case, what cannot be disputed or overstated is that the subject intersection has a poor accident record. The NSW Centre for Road Safety provided the following information on the intersection:
Crashes were identified using an initial 30m spatial buffer around each signalised intersection, and crashes were included in this analysis where they were located within 10m of the intersection.
Over the period July 2009-June 2014, there were 18 crashes at the intersection of Oxford St and Flinders St, resulting in 13 injuries with five of the injuries at the location categorised as 'serious' meaning the injured person was admitted to hospital. Of these crashes, 7 (38.9%) involved a pedestrian, which typically result in serious injuries to the pedestrian.
…. the intersection of Oxford St and Flinders St (Traffic Control Systems ID 685) is ranked 224 of the 3400 signalised intersections in NSW placing the intersection in the worst 10% of signalised intersections; casualties in NSW.
Rhetorically, it could be asked why an electronic billboard, that is designed to be noticed, has a prominent location at an intersection that has a poor accident history for vehicles and pedestrians and in an area that attracts large numbers of people is appropriately located in terms of road safety. Unlike many of the voluntary and involuntary distractions identified by Professor Washington, there is the opportunity to avoid a distraction that could be potentially unacceptably impact on road safety at the intersection.
In response to the question posed by cl 8 of SEPP 64, I am satisfied that that the proposed sign would "reduce the safety for any public road" and "would reduce the safety for pedestrians or bicyclists" given the potential for driver distraction when combined with the poor accident history of the intersection and, at times, the large number of people that can frequent the area near the location of the proposed sign.