Tewlen Pty Ltd v Melbourne CC

Tewlen Pty Ltd v Melbourne CC - [2010] VCAT 535 - VCAT 2010 case summary — Zoe

[33]

This is the central issue in the determination of this application and, indeed, was the focus of the parties' submissions.
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.
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.
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.
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.
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.
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.
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.
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.
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:

[41]

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.
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.
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.
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.
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.
My conclusion is that the proposed sign does not represent an acceptable planning outcome in this location.
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.

[43]

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.
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.
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.
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.
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.
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.
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.

At a glance

Court

Decision date

Source

Judgment (48 paragraphs)

Tewlen Pty Ltd v Melbourne CC (includes Summary) (Red Dot) [2010] VCAT 535 (6 May 2010)

Parties