Consideration of whether the sign is a safety hazard by virtue of the fact that it is animated, it can distract drivers, and is proposed to be located at a relatively complex intersection.

CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable

Apparent error in Clause 37.04-5 which states that Clause 52.05-6 does not apply to the consideration of an application within the Capital City Zone.

This application concerns the proposed display of an electronic major promotion sign. During the course of the hearing, the Tribunal's attention was drawn to an apparent error in the drafting of Clause 37.04-5. That Clause states that Clause 52.05-6 (which addresses major promotion signs) does not apply to advertising signs in the Capital City Zone. The determination recommends that this be addressed.

Clause 52.05-3 states that an animated sign that can distract drivers is a safety hazard. VicRoads opposed the grant of the permit on road safety grounds. Within the context of a relatively complex intersection that already supports a number of signs providing varying information for drivers, it was concluded that the sign constitutes an unacceptable safety hazard and should not be approved.

Section 77 Planning and Environment Act 1987; Melbourne Planning Scheme; Electronic major promotion sign; Traffic hazard; Urban design.

Tewlen Pty Ltd v Melbourne CC (includes Summary) (Red Dot) [2010] VCAT 535

1. Pursuant to Section 127 and Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the application is amended to identify the review site as 174-184 City Road, Southbank.
2. The decision of the Responsible Authority is affirmed. In Planning Application No. TP-2008-1100, a permit is not granted and no permit is to issue.

• Mr Jason Walsh, Traffic Engineer of Cardno Grogan Richards.
• Mr Stuart McGurn, Town Planner of Fulcrum Town Planners.

Mr Mark Bartley, Solicitor of DLA Phillips Fox. He called the following witness:

• Dr Steven Cloate of the University of Queensland

The proposal is to display an electronic major promotion sign. The sign is to measure 4.8 metres by 6.4 metres with an advertisement area of 30.72 square metres. It is to be positioned 7.7 metres above ground level and project a maximum of 1.7 metres from the wall of the host building. The sign is proposed to operate 24 hours a day, seven days per week. The advertising is to comprise a series of static images that change every 10 seconds. From dusk until dawn it is intended that the sign operate in 'night-mode' which reduces the level of illumination.

Section 77 Planning and Environment Act 1987

cl 37.04-5 (construction and display of an advertising sign on land within the Capital City Zone)

The review site is located on the north-west corner of City Road and Power Street in Southbank. The property has a frontage of 40.1 metres to City Road, a sideage of 66 metres to Power Street and a 10.5 metre splay at its north-eastern corner. Occupying the site is a 37 storey building accommodating commercial and residential land uses.

Surrounding development includes a mixture of low rise buildings and high-rise towers. Land uses include commercial, car parking and residential.

VicRoads v Bayside CC [2009] VCAT 2734

Octopus Media Pty Ltd v Canada Bay City Council [2006] NSWLEC 580

1. Tewlen Pty Ltd applied to the Melbourne City Council for a permit to construct and display an electronic major promotion sign on the review site.
2. The Council refused the application on grounds relating to road safety (a ground required by VicRoads - a referral authority) and the impact of the sign on the amenity of the area.
3. This application seeks a review of the Council's decision.
4. Having regard to the submissions and evidence of the parties, the policies, provisions and decision guidelines of the Melbourne Planning Scheme and the context of the review site the Tribunal must decide whether the proposed sign represents an acceptable planning outcome.

1. The State Planning Policy Framework provides relatively limited guidance in the assessment of advertising signs. Clause 18.01 refers to the planning and regulation of areas surrounding transport routes to ensure that appropriate visual standards are achieved. Specific reference is made to the control of advertising signs as part of this regulation. Clause 19.03 addresses design and built form, and includes general policy statements aimed at providing an attractive urban context.
2. More specific guidance is found within the Local Planning Policy Framework. The Municipal Strategic Statement includes objectives and strategies aimed at achieving a quality public environment[2]. A relevant strategy is:

Ensure advertising signs respect the architecture of the building they are on and the character of the surrounding streetscape and skyline, avoiding visual pollution and intrusive lightspill.

1. Clause 22.01 addresses urban design within the Capital City Zone and, although generally focussed on built form outcomes, states that signs should be integrated with the architecture of the building.
2. The most relevant of the local policies is Clause 22.07 'Advertising Signs'. In general terms, the policy objectives refer to allowing reasonable communication of messages while protecting and enhancing the public realm. The key policy statements address the need to achieve acceptable built form and urban design outcomes, avoid visual clutter and ensure that appropriate illumination is provided. Relevantly, the policy states that promotion, panel and sky signs are discouraged.
3. The policy provides several criteria against which signs are to be assessed. For sites within the Capital City Zone, these guidelines are separated into different categories of signs, with the relevant one in this instance being a 'wall mounted projecting' or a 'wall sign' erected on that part of the building which is between first floor to 40 metres. There was some discussion at the hearing as to which of these two categories the proposed sign fell within. I am persuaded by the evidence of Mr McGurn that the term 'wall mounted projecting' refers to a sign that is positioned perpendicular to the wall of the host building. I say this because the 'special comments' component of the guidelines for this type of sign state:

May be permitted in individual circumstances where upper-floor tenancies rely on passing trade, subject to urban design and amenity considerations.

1. In my view, in order to effectively achieve this outcome, the sign would need to be positioned in such a manner that it would be clearly identifiable from a distance in order to capture passing trade. A sign that is positioned almost flush with the façade would have greater difficulty achieving this visibility.
2. I am persuaded that the correct classification of the proposed sign is 'wall sign'. The Guidelines state that there should only be one sign per façade and that it should be compatible with the scale and architecture of the host building.
3. Further guidance in the assessment of advertising sign proposals is provided by the decision guidelines at Clause 52.05-3. These guidelines address a number of factors including the impact of a sign on the host building and the built form context, the effect on any views or vistas, the impact of any illumination and the impact on road safety. I will refer to specific guidelines in later sections of these reasons, as relevant.
4. More specific guidelines in relation to major promotion signs are provided at Clause 52.05-6. Matters addressed in these guidelines include the sign's impact on the streetscape, buildings, any significant view corridor, residential areas, heritage places and open space areas. The guidelines also include locational principles that encourage signs in commercial and industrial locations (provided they complement or enhance the character of the area) and discourage such signs in open space areas, tourist roads, landscaped sections of freeways and locations where they will form a dominant visual element from residential areas and heritage places.
5. It was brought to my attention during the hearing that this Clause may technically not apply to the consideration of this proposal by virtue of Clause 37.04-5 which states:

Advertising sign requirements are at Clause 52.05. This zone is not in a category at Clauses 52.05-6 to 52.05-10.

A permit is required to construct and display a sign unless the schedule to this zone specifies otherwise.

Any requirement in the schedule to this zone must be met.

1. I note that the advertising sign categories commence at Clause 52.05-7, not 52.05-6 as referred to in the above Clause.
2. Mr Bartley submitted that the reference to Clause 52.05-6 is an error. This submission was supported by Mr Townsend, who stated that the error appeared to have arisen at the time the changes approved by Amendment VC49 (which addressed advertising signs) were inserted into the Melbourne Planning Scheme.
3. Mr Gobbo submitted that the matters specified in the guidelines are addressed elsewhere in the Planning Scheme and there is therefore no need to place exclusive reliance on Clause 52.05-6 in the assessment of this application.
4. I accept the submissions of the parties on this matter. I agree with Mr Bartley and Mr Townsend that the reference to Clause 52.05-6 appears to be a drafting error. I say this on the basis that Clause 52.05-6 does not specify a category of advertising sign control. Nonetheless I must apply the Planning Scheme as I find it and I do not consider that I have the discretion to apply Clause 52.05-6 when the Scheme states that it does not apply. I agree with Mr Gobbo that the matters nominated under Clause 52.05-6 are, in general terms, referred to in one way or another in Clause 52.05-3, which I can properly have regard to.
5. That said, I would encourage the Council to further investigate this issue and, if it is in fact confirmed that the reference to Clause 52.05-6 in Clause 37.04-5 is an error, an amendment to the Planning Scheme be initiated to address this.

1. This is the central issue in the determination of this application and, indeed, was the focus of the parties' submissions.
2. I consider that the starting point in the assessment of this issue is the Planning Scheme, specifically the decision guidelines at Clause 52.05-3. Of particular relevance is the decision guideline relating to the impact of the sign on road safety. Relevantly, that guideline states that a sign is a safety hazard if the sign:
   • Could dazzle or distract drivers due to its size, design or colouring, or it being illuminated, reflective, animated or flashing.
   • Is at a location where particular concentration is required, such as a high pedestrian volume intersection.
   • Is likely to be mistaken for a traffic control device, because it contains red, green or yellow lighting, or has red circles, octagons, crosses, triangles or arrows.
3. It was common ground among the parties that the sign will cause distraction. Promotion signs are designed to distract persons from what they would otherwise be doing in order to convey a message or promote a good or service. An animated sign, by virtue of its non-static nature, has a greater potential to distract than a standard billboard sign. In my view, it is instructive that, according to the Planning Scheme, a sign that could distract drivers due to it being animated is a safety hazard. I consider it significant that the word 'is' is utilised, rather than the words 'may be' or 'could be'. As the sign is animated and has the potential to distract drivers, according to the Planning Scheme it is a safety hazard. What needs to be determined is whether the nature of the hazard is such that the sign should not be displayed at this location.
4. VicRoads oppose the application on road safety grounds. In submitting that the sign would lead to an unacceptable negative impact on road safety, VicRoads contended that the nature of the sign, its location and proposed manner of operation combine to create an unacceptable risk to road safety by being a distraction to drivers. In this respect, reference was made to the volume of traffic carried by City Road and to the multiple traffic lanes that exist on this road between Southbank Avenue and Power Street and also those that exist in Power Street between City Road and Queensbridge Street.
5. It was submitted that the intersection of City Road and Power Street is one where a high level of driver concentration is required and that the distraction caused by the proposed sign would constitute an unacceptable hazard. VicRoads also commented on the fact that the proposed sign is to be erected on the lower portions of the building and be directly in the sightline of drivers as they approach the intersection, thereby increasing the potential for distraction.
6. In support of its submission, VicRoads called evidence from Dr Steven Cloate. Dr Cloate has completed a PhD dissertation on ergonomic considerations of multiple-message traffic signs and is employed by the University of Queensland, investigating multisensory contributions to steering and braking behaviour in real and simulated driving. His areas of expertise are:
   • Visual and attentional factors in the design and use of traffic control devices.
   • Timing, execution and control of skilled motor movements in the context of automobile driving.
7. In summary, it was Dr Cloate's evidence that the research undertaken to date indicates that advertising signs cause distraction, but the effects of the distraction are likely to be small when compared to in-vehicle distractions such as mobile phones and satellite navigations systems. I think it is fair to say that Dr Cloate accepted there is no existing evidence that specifically attributes road accidents to distractions caused by advertising signs, animated or otherwise.
8. The Applicant called evidence from Mr Jason Walsh, a traffic engineer. His evidence was that the proposed sign would not be fully visible until drivers are between 125 - 150 metres from the sign and that, by that time, drivers will have made their decisions as to which lane they should be travelling in. Mr Walsh had undertaken an analysis of the 'before and after' crash statistics in the vicinity of two existing animated signs (at 354 South Road Hampton and 8-12 Punt Road Windsor) and found that there was no increase in the number of accidents since the installation of those signs. Mr Walsh concluded that the sign would not result in any adverse safety impacts.
9. On this point, while the crash statistics are useful, I consider that the degree of weight which they are afforded should be tempered for a number of reasons. Specifically, the statistics do not include property damage or minor incidents which are not reported and there is also the potential that drivers will not admit to being distracted due to the liability implications.
10. Dr Cloate gave evidence at the hearing of VicRoads v Bayside CC [2009] VCAT 2734 which also concerned an electronic sign. At that hearing, evidence was also called from a traffic engineer. I agree with the following comments of the Tribunal in that case:

[34] ...whilst the two experts before us were able to point to a range of research previously carried out investigating to what extent advertising signs (including in some cases digital billboards) on or near roadways can distract drivers, what became clear to us is that no study has yet been undertaken that has definitively and unambiguously established to what extent the installation of conventional signs (let alone full animation) crosses a threshold beyond which "distraction" results in a proven negative impact on road safety.

[35] ... these studies in our view are also grappling with the rather arbitrary question of how many visual distractions the average driver can readily cope with, whilst still being capable of "driving safely". While we are not convinced that a "distraction threshold" has been established, we consider there is support for the proposition coming out of some of the relevant research that a driver who glances away from the traffic ahead for more than two seconds at a time significantly escalates that driver's chances of a road accident[3]. It is not clear to us (even with the benefit of these studies) whether a distraction of less than two seconds at a time is of any particular practical consequence.

1. I also note that, in respect of any potential road safety risks associated with these types of advertising signs, the Tribunal stated:

[44] Focusing at this point on the ability of drivers to readily deal with dynamic electronic images rather than full animation, we are satisfied (with the benefit of our site inspections) that no particular road safety risk arises from an electronic sign that uses:

• a series of static images where the whole image keeps rotating (similar to presenting slides in a slide projector); or
• a fixed background image but with text that changes at intervals, along the lines of a powerpoint presentation

1. During the hearing, there was considerable discussion of the particulars of the City Road/Power Street intersection. This included reference to the various traffic lanes, the alternative routes offered to drivers travelling through this area, the existing signs (including the traffic advisory signs) and the signalised nature of the intersection. In combination, all these elements contribute to the creation to what is, in my view, a relatively complex road environment.
2. As drivers approach the intersection, they are confronted with a number of sources of driver information, resulting in the need to process the information within a relatively short distance. While regular commuters may be well accustomed to the various lane options, for example, it can prove quite confusing for visitors or those who travel this route less frequently. In my view, the safe and efficient operation of the road network is, in part, dependent on minimising the elements that may act to distract drivers.
3. I acknowledge that there is no conclusive evidence that advertising signs cause distractions that lead to a reduction in road safety. In this respect, I find the following extract of the decision of the New South Wales Land and Environment Court in the matter of Octopus Media Pty Ltd v Canada Bay City Council [2006] NSWLEC 580 useful and appropriate to my consideration of the application:

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

1. The same is applicable here. I agree that the proposed sign will need to be assessed on its merits and having regard to its context.
2. On approach to the intersection, a key choice drivers are required to make is that of which lane they will need to be travelling in, in order to reach their destination. Examples of some destinations include the casino complex, the central city area on the north side of the Yarra, South Melbourne, Port Melbourne and areas beyond. There are a number of indicators which are intended to assist drivers in this decision, such as traffic advisory signs, lane markings and a sign advising of the location of public car parking. All these indicators are within a relatively confined distance.
3. The proposed sign will be located directly within the view of drivers as they approach the intersection. Its location on the lower portion of the building enhances not only its visibility but also, in my view, its potential to distract drivers and for a longer period of time than would be the case with a sign that was positioned higher[4]. This point distinguishes the proposed sign, for example, from the sign in South Road Hampton[5] that was referred to during the hearing. That sign is elevated above the host building and is positioned at an oblique angle to the road. Consequently it remains in the driver's field of vision for a more restricted period of time and is more likely to attract a glance than a prolonged view.
4. I consider that what is also of relevance is the animated nature of the sign and its somewhat 'novel' nature, being a relatively new form of advertising. The animated sign, due to its dynamic character, is potentially likely to capture attention from a greater distance than would be the case for the common billboards, particularly at night when the illumination would be enhanced by the darkened backdrop and surrounds.
5. I have inspected the site and surrounds on several occasions - these being prior to the hearing, in the intervening period between the two hearing dates and after the hearing, during both daytime and evening - and have given careful consideration to the submissions and evidence of the parties.
6. My conclusion is that the proposed sign does not represent an acceptable planning outcome in this location.
7. Accepting that, on the basis of Clause 52.05-3, the animated nature of the sign and its distraction of drivers results in it constituting a safety hazard, I am not persuaded that the sign will not compromise the safe and efficient operation of the adjoining road network - in particular the approach from the east along City Road. In my opinion, the sign will be a source of distraction to drivers in an already complex environment where multiple messages are conveyed by a series of signs. I make this finding on the basis of the particular facts and circumstances of this case, specifically, the context of the review site.

IS THE SIGN APPROPRIATE FROM AN URBAN DESIGN PERSPECTIVE?

1. The Council did not strongly argue that the sign represents an inappropriate urban design outcome. Although relying on the comments of its Urban Design Branch, the Council's case did not include a thorough analysis of the site's environs as a means of demonstrating that the sign would be an inappropriate addition to the overall built form and visual context of the locality. The principal assertions of the Council's case are that the sign will be "unduly prominent" at night; it would be "detrimental to views in the vicinity"; and that it would not achieve the purpose of avoiding an adverse impact on the built environment and appearance of the road/s. Emphasis was placed on the fact that Clause 22.07 strongly discourages promotion and panel signs. It was also submitted that the sign would not enhance the pedestrian realm.
2. The Council advised that there is no strategy plan, policy or urban design framework for the Southbank area that is of relevance to the consideration of this issue.
3. Mr McGurn undertook a thorough analysis of the site's planning and built form context. He stated that in recent times Southbank has evolved into a vibrant mixed use area which, although part of the Central City area, has a very different character and is an environment within which advertising signs (subject to appropriate design and siting) can play a role in providing liveliness, stimulation, colour and visual interest. Reference was made to a number of constraints within the main Central City area that limit the locations within which a sign of this nature could be displayed. These include heritage areas, other areas of special character (such as Bourke Hill and the Yarra River environs) and significant vistas. In contrast, the review site and its immediate surrounds are not subject to any such constraints.
4. It was Mr McGurn's view that signs which are located on the lower parts of buildings integrate more readily with the built form and have a more truncated viewshed than higher signs. He went on to state that the proposed sign, by virtue of its location, does not have an expansive viewshed or visual impact.
5. There are a number of large promotion signs in the vicinity of the review site. In the block generally bounded by City Road, Southbank Boulevard, Queensbridge Street and Power Street, there are five such signs. These signs are visible from different vantage points and are positioned at varying heights. Nonetheless, in my view they can reasonably be considered to represent a concentration of these types of signs in the immediate vicinity of the review site.
6. What must be decided is whether the proposed sign will enhance the visual amenity of the locality. In the sign's favour, it is, in relative terms, a smaller sign than the majority of the existing signs in the area. Also, unlike the other signs that have simply been attached to the existing structures in a utilitarian manner, the proposed sign appears to have been designed to integrate with the architecture and design of the host building. Indeed, Mr McGurn advised that the architect of the building had been engaged in the design and location of the sign. It has the appearance of a clean, modern advertising element on a contemporary building. However, this is the appearance when the sign is viewed in isolation of its context.
7. Looking beyond the review site, the sign, due to its animation, will be a prominent and quite obvious element in the overall composition of the area's visual context. For vehicles and pedestrians proceeding along Power Street, where the other promotion signs have an influence on the sign's viewshed, the sign will add to the concentration of advertising sign images within this localised area. I find that the proposed sign will contribute to the creation of a sense of visual clutter or sign proliferation within a short section of Power Street and is not a desirable outcome from an urban design perspective, particularly as Power Street is a key route into the main Central City area from the south.

1. For these reasons, I have concluded that the proposed sign will not represent an acceptable planning outcome.
2. I will affirm the decision of the Responsible Authority.

[1] I have considered all submissions and accompanying material, assisted by my inspection. I do not recite all of the material presented as all documentation is retained on the Tribunal's file.

[3] [Note: this footnote forms part of paragraph 35 of the VicRoads v Bayside CC [2009] VCAT 2734 decision] We refer here to the National Highway Traffic Safety Administration report into driver inattention. One its findings was that "The analysis of eye-glance behaviour indicates that total eyes-off road durations of greater than 2 seconds significantly increased individual near-crash/crash risk whereas eye-glance durations less than 2 seconds did not significantly increase risk relative to normal, baseline driving".

[4] On this particular point I note that at paragraph 31 of the determination of Octopus Media Pty Ltd v Canada Bay City Council [2006] NSWLEC 580, it was stated that signs at street level are likely to have a greater visual effect than elevated signs.

[5] The subject of two applications: Octopus Media v Bayside CC [2004] 2304; and VicRoads v Bayside CC [2009] VCAT 2734