Victorian Civil and Administrative Tribunal|2014-06-24

Tewlen Pty Ltd v Melbourne CC [2014] VCAT 766 (24 June 2014)

Section 77 of the Planning & Environment Act 1987; Melbourne Planning Scheme; whether an LED screen at a major intersection would cause an inappropriate traffic hazard.

Tewlen Pty Ltd v Melbourne CC [2014] VCAT 766

Erection and display of an electronic major promotion sign in accordance with the endorsed plans.

Conditions in the permit are amended as follows:
- (a) Condition 1 is amended to read:

Prior to the installation of the electronic sign hereby approved, the applicant must submit a report to the satisfaction of VicRoads and the Responsible Authority indicating that the level of illumination of the sign:

(a) will not cause detriment to neighbouring properties;

(b) will not impede the road users ability to safely approach and move through the intersection;

(c) will not be brighter at night than the existing internally illuminated sign, and will not be brighter during daylight conditions than the existing electronic sign at the corner of Flinders Street and Elizabeth Street, Melbourne.

When approved, the report will form part of the planning permit and the sign must at all times operate in accordance with the report.

The signs hereby permitted must not be animated or contain any flashing light other than to allow the sign message to be updated once every 24 hours at a time to the satisfaction of the responsible authority. The update of the sign must be instantaneous.

Sequences of images giving the illusion of continuous movement must not be displayed. Images capable of being mistaken for traffic signals or traffic control devices because they, for example, contain red, amber or green in combination with circles, octagons, crosses or triangles must not be displayed.
Images or text capable of being mistaken as an instruction to a road user must not be displayed.

Flashing background, flashing text or flashing images must not be displayed.

In the event of an attack by a computer hacker or similar resulting in unauthorised display of visual images, or any other display malfunction, the electronic sign is to shut down and cease any form of visual output until the malfunction is repaired.
- (d) Conditions in the permit are renumbered accordingly.

Plans endorsed under the permit are amended and the responsible authority is directed to endorse amended plans showing:
- (a) The erection of an LED screen in lieu of the previously approved internally illuminated sign.

Mr Bisset called expert evidence from Donn Salisbury (lighting design) from Electrolight Sydney Pty Ltd and Dr Shane Richardson (Mechanical Engineer) of Delta-V Experts.

James Livingston, Town Planner of James Livingston Planning.

James Lofting, Senior Associate at HWL Ebsworth Lawyers

Amendment to an existing permit to allow an approved internally illuminated sign to be replaced with an LED Screen.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 37.04-5 to construct and display a sign on land within the Capital City Zone.

Clauses 10, 15, 18, 21, 22.07, 37.04, 52.05 and 65.

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.[1]

The Tribunal inspected the site and the surrounding area prior to the hearing, on 11 June 2014.

Tewlen Pty Ltd v Melbourne CC [2010] VCAT 535; Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675; Batsis Nominees Pty Ltd v Hobsons Bay CC [2009] VCAT 928.

In the decision of Tewlen Pty Ltd v Melbourne CC [2010] VCAT 535 the Tribunal determined to affirm the decision of the Melbourne City Council to refuse to grant a permit for a proposed electronic major promotion sign on the side of a building at 174-184 City Road, Southbank (the 'review site'). Relevantly the review site sits at the corner of City Road and Power Street, and the sign was intended to face the intersection.
Following that decision on 5 September 2011 the Melbourne City Council issued a planning permit to allow the erection of an internally illuminated sign on the review site. The dimensions, design and location of the approved internally illuminated sign matched those of the electronic major promotion side previously refused by Council and the Tribunal. The key difference obviously was the use of a static internally illuminated advertising panel, rather than a dynamic changeable sign.
Tewlen Pty Ltd (the 'Applicant for Review') has sought to amend the planning permit to allow an LED screen to replace the internally illuminated sign, and essentially allow an electronic major promotion sign to be erected on the land. The key difference to the previous proposal that was before the Tribunal is that now the image on the LED screen is proposed to change once every 24 hours during off-peak times, rather than once every 10 seconds, as was previously proposed.
The Melbourne City Council had to refuse to grant a permit, as VicRoads as a determining referral authority objected to the grant of a permit. Mr Livingston for the Council advised the Tribunal that had VicRoads not objected to the grant of a permit, then Council would have determined to grant a permit. VicRoads opposes the proposed sign on the basis that it will have an impact on road safety.
Tewlen Pty Ltd (the 'Applicants for Review') has again sought a review of the Council's decision. The Application for Review is opposed by VicRoads, with the Council taking a more neutral stance at the hearing.
The key issues or questions for determination are:
1. What type of repeat appeal does this proceeding constitute?
2. Will the proposed sign cause an unacceptable impact on road safety?
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Melbourne Planning Scheme, I have decided to set aside the Council's decision, and direct the amendment of the existing planning permit. My reasons follow.

WHAT TYPE OF REPEAT APPEAL DOES THIS PROCEEDING CONSTITUTE?

There is a wide body of past Tribunal decisions,[3] and those decisions of the Tribunal's predecessors, that deal with the concept of repeat appeals. Repeat appeals are those Applications for Review that follow a past decision of the Tribunal, and seek a different outcome from the previous decision. Sometimes repeat appeals come before the Tribunal where proposed developments have only minimal, if any, changes. These are referred to as 'classic repeat appeals,' and the general expectation is that, unless there have been other relevant changes, such as to the physical context of the site or the applicable planning controls, the previous decision of the Tribunal will be followed. The alternative category are 'correcting repeat appeals,' where a proposal has been modified in response to the criticisms or shortcomings identified in a previous Tribunal decision. In such cases it is accepted that the previous Tribunal decision does not need to be repeated, but it is a factor which should be given significant weight.
Of course, a finding about the type of repeat appeal involved in the proceeding is only the starting point of an assessment, as one must also have regard to the merits of the proposed development. This was identified in the decision of Sprut Pty Ltd v Stonnington CC [2012] VCAT 1675[4] where the Tribunal remarked:

Secondly, irrespective of whether the repeat appeal is in the nature of a 'classic' or 'correcting' repeat appeal, the role of the Tribunal is not to determine whether the proposal before it would have satisfied the earlier (and perhaps differently constituted) Tribunal, nor to summarily determine the matter solely by reference to the Reichert[5] principles. This is a sometimes misunderstood notion. As Amoco[6] itself indicated, the role of the Tribunal is to still consider the new application before it on its merits but, in doing so, to give great weight to the Tribunal's decision on the earlier application having regard to the usual principles that have evolved for this purpose.

Mr Lofting for VicRoads submitted that the decision of the Responsible Authority should be affirmed as the proposal represented a 'classic' repeat appeal which deserved the same outcome as the previous Tribunal decision. He made this submission on the basis that the proposed electronic major promotion sign was essentially the same sign as that refused in the previous Tribunal decision for the review site.
By way of background, the following table provides a useful timeline of the recent past planning permit activity regarding proposed signage on the review site.

Decision of Tewlen Pty Ltd v Melbourne CC is made to affirm the Council's decision to refuse a permit for an electronic major promotion sign.

Planning Permit application TP-2011-489 made to Melbourne City Council for an internally illuminated major promotional sign.

Application TP-2011-489A made to amend the permit to instead erect an electronic major promotional sign.

Application to amend the permit withdrawn after VicRoads objects.

Internally illuminated major promotional sign is erected on the review site.

Further application made to amend the planning permit to change the internally illuminated major promotional sign to an electronic one.

Refusal to Amend a Permit notice issued by Melbourne City Council with respect to the application to amend the planning permit to allow an electronic major promotional sign.

Application for Review P2377/2013 lodged with VCAT to review the Council's decision.

There are four tests established to determine the factors which might justify a departure from an earlier decision in a repeat appeal. These tests were refined in the decision of Batsis Nominees Pty Ltd v Hobsons Bay CC [2009] VCAT 928 to include the following:
- Significant or material changes to the application itself which address the primary reasons for the previous proposal being refused;
- Significant or material changes in the circumstances of the land or its surrounds;
- Significant or material changes in planning controls and policy; and/or
- Significant or material changes in the interpretation of the facts or law relevant to the Tribunal's consideration.
I find that there have been relevant changes for this Application for Review in relation to two of these tests. I make this finding for the following reasons. In relation to the first test, there has been a material change to the application itself, as previously the images on the electronic sign were to change about every 10 seconds. Now the proposal is to change the image once every 24 hours, at a time when there is little activity on the surrounding road network. That has a material impact on the key ground on which the Tribunal based its last decision, that being the impact of a dynamic or animated sign on the safety of the surrounding road network. Essentially the change has all but taken the dynamic or animated nature of the sign out of the equation.
Mr Lofting submitted that the proposed change in the dynamic nature of the sign has not addressed the Tribunal's previous concerns regarding the cumulative effect of the 'brightness, visibility and urban design' of the proposed sign. With respect to Mr Lofting, I do not read the previous decision of the Tribunal as relying on a combination of these factors as reasons for refusal of the grant of a permit. While the decision goes on to explore the urban design attributes, it only does so after concluding that the sign was inappropriate on road safety grounds:[7]

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.

In relation to the other words used in Mr Lofting's submission, the word brightness is not a term used at all in the reasons contained in the Tewlen decision. The decision also acknowledges that any sign of this nature is purposively visible or distracting,[8] but appears more concerned with the distracting nature of its animation, or moving images, than its level of visibility per se. For these reasons I do not agree with Mr Lofting's summation as to what were the Tribunal's previous concerns.
On my reading the Tribunal's main concern previously was in relation to the dynamic or animated nature of the sign, causing an undue level of distraction to motorists in this complex road environment. As the dynamic or animated nature of the sign has basically been removed from the proposal, that constitutes a significant change to the application itself.
Guided by the second test, there is also a significant change in the circumstances of the land. The change is that there already now exists a large internally illuminated sign, which is identical in size to the electronic sign that is now proposed for the review site. I will explore the significant impact that this existing sign has on the ambit of my decision making in the next section.
Having regard to these two changes, I find that this is not a classic repeat appeal, but rather one where a significant corrective change has occurred, and where there has also been a significant change in the physical condition of the review site. I am therefore not bound to repeat the previous decision of the Tribunal, but will give significant weight to it's reasons in my decision making.

WILL THE PROPOSED SIGN CAUSE AN UNACCEPTABLE IMPACT ON ROAD SAFETY?

Clause 52.05-3 of the Melbourne Planning Scheme contains decision guidelines that responsible authorities must consider, including:

The impact on road safety. A sign is a safety hazard if the sign:

Obstructs a driver's line of sight at an intersection, curve or point of egress from an adjacent property.
Obstructs a driver's view of a traffic control device, or is likely to create a confusing or dominating background which might reduce the clarity or effectiveness of a traffic control device.
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.
Requires close study from a moving or stationary vehicle in a location where the vehicle would be unprotected from passing traffic.
Invites drivers to turn where there is fast moving traffic or the sign is so close to the turning point that there is no time to signal and turn safely.
Is within 100 metres of a rural railway crossing.
Has insufficient clearance from vehicles on the carriageway.
Could mislead drivers or be mistaken as an instruction to drivers.

A useful place to start in answering the question of impact on road safety is the analysis that the Tribunal undertook in the previous decision on the review site. In that decision the Tribunal first analysed the applicable decision guidelines and noted:[9]

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.

The Tribunal then went on to assess the impact on traffic safety:[10]

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.

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.

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. This point distinguishes the proposed sign, for example, from the sign in South Road Hampton 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.

As I have identified above, the physical context of the site is different to that which was before the Tribunal in the previous decision. The critical difference is the existence of an internally illuminated sign. Mr Lofting submitted that the approved and constructed internally illuminated sign was not required to be referred to VicRoads, and VicRoads was not given notice of the permit application. I was told that if VicRoads had received notice of the earlier application, it would have objected to the grant of a permit, and sought a review of a Council decision to grant a permit, on road safety grounds. It is the opinion of VicRoads that the existing internally illuminated sign is a road safety hazard.
I don't have before me an application to erect the existing internally illuminated sign. That sign already has a permit, and is already erected on the review site. I also don't have before me an application to erect the first ever sign of any nature on the review site, as was the context that was before the previous Tribunal. Instead what is before me is a proposal to amend an existing permit, to essentially replace an existing internally illuminated major promotion sign with an electronic major promotion sign. My task therefore is to assess the differences between the existing sign and that proposed, that being the proposed amendment to the permit, and to consider whether those differences will have an unreasonable impact on road safety.
The hearing was conducted on the basis that there would few significant differences between the existing sign and that proposed. The obvious difference is the method of illumination to be used, that changing from being backlit to being an LED Screen. As a result of this change Mr Lofting submitted that as the LED Screen will be sharper and more easily read, it will be more distracting to drivers. While I have given this submission some thought, instead I am persuaded by the evidence of Mr Salisbury and Dr Richardson. It is their evidence that the sharpness of the images will only allow drivers to more readily and easily take in the message involved, which if anything will reduce the extent of time required to read the advertising sign. The evidence therefore is that the level of distraction, or the extent of time during which drivers are distracted, will either be reduced or remain unchanged.
The other key difference is that this sign will change instantaneously and remotely in the early hours of every morning, when traffic levels are at their lowest. Mr Lofting for VicRoads did not attempt to mount an argument regarding the impact on road safety as a result of this one change of image every 24 hours. I agree with this approach, that changing the image on the sign once every day in the early hours of the morning will have a negligible impact on road safety. I consider that it will be far less distracting than having multiple people up in a cherry picker manually changing the sign every so often, during daylight hours.
Having identified the changes that are involved with the amendment to the existing permit that is before me, it is important also to identify what is not changing. The electronic sign will be located in precisely the same position as the existing sign, and will be precisely the same size. As such, it will have the same sightlines from the surrounding road network, although there is evidence that the illuminated screen of the LED sign will not be visible on acute angles. The new electronic sign will adopt the same brightness level as the existing internally illuminated sign during the nighttime. However, the brightness level of the electronic sign is variable depending on the ambient background light, and as such the electronic sign will be brighter during the day.
To consider the impact of this brighter daytime condition, I have inspected an electronic sign at the corner of Flinders Street and Elizabeth Street in the city, which I was told was of the same technology from the same sign company. My observations of that sign on a number of occasions during the day, and in different light conditions, reveals that the sign remains lit and 'crisp' without appearing to be overly bright, or distracting due to its brightness level. On the basis of my observations, I am satisfied that the brightness level of the proposed sign will not be more distracting to motorists than the existing internally illuminated sign, if it is similar in brightness to the sign which I observed at the corner of Flinders and Elizabeth Streets. Given I was invited to inspect this sign by Mr Bisset, I consider it appropriate to rely on this sign as an accurate example of that proposed in this amended permit.
As a result of this analysis, it is evident that the proposed amendments to the permit will result in a sign that measures well compared to the decision guidelines at Clause 52.05-3 of the Melbourne Planning Scheme. In particular I note that:

The sign will be in precisely the same position as the existing sign, so the decision guidelines relating to line of sights and views of traffic devices are not invoked by this proposal; 2. Will not create a confusing or dominating background to a traffic control device, by adopting a nighttime brightness the equivalent of the existing internally illuminated sign, and by the application of conditions controlling the colors and shapes on advertising. Due to this condition the sign will also not likely to be mistaken for a traffic control device.

Will not be so bright to dazzle or distract drivers, based on the starting condition of the existing internally illuminated sign, and will not be animated or flashing, except for a single change of image at an early hour of each morning;

The sign does not require close study from a moving or stationary vehicle, as it will only contain one static image that will be visible on a reasonable length of approach; 2. The sign will not invite drivers to turn, as it is a promotional sign not related to the activities conducted on site; 3. The sign could not be mistaken as an instruction to drivers, as a condition agreed to be included on the amended permit will ensure against such an outcome.
For these reasons I find that the proposed sign will not have an unreasonable impact on road safety.
Much of the submissions and cross examination conducted on behalf of VicRoads focussed on the impact of the existing, and thus the proposed, sign on a driver's ability to drive through this intersection and notice pedestrians, traffic lights and other vehicles. Such submissions and cross examination was unhelpful given the nature of the approval that is before me, and the existing conditions that include the existing sign. The hurdle which VicRoads needed to overcome in this case is how the proposed amendment, that is replacing an existing internally illuminated sign with an electronic sign, will cause an increased road hazard. For the reasons I have set out above, I find that such a conclusion cannot reasonably be reached. I will therefore set aside the Council's decision, and direct that amendments be made to the existing permit.

Prior to the hearing the Council circulated a draft set of amended conditions. A further set of additional conditions was circulated by VicRoads on the morning of Day 1 of the hearing. Much discussion was had during the course of the hearing as to how the wording of these conditions could be edited. Some of those editing changes were agreed to by the parties, but some contrasting views were held about the suitability of different words. At the end of the hearing, the parties were separated little in terms of what they considered to be appropriately worded conditions, if I did decide that the permit should be amended.
I have taken into account the views of the different parties in relation to the final set of conditions. The words I have adopted, and included in my order, reflect the position generally adopted by the parties, with a decision here and there on the inclusion of words or sentences where differences of opinions were held.

For the forgoing reasons the decision of the Responsible Authority will be set aside. The permit will be amended in accordance with my orders.

[1] This is the land description provided in the decision of Tewlen Pty Ltd v Melbourne CC [2010] VCAT 535.

[2] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] Such as Reid v Nillumbik SC (No.3) [2011] VCAT 925.

[5] In reference to the decision of Reichert v Banyule City Council (1996) VICCAT 44

[6] In reference to the decision of Amoco Australia Limited v City of Berwick (1983) 1 PABR 166

[10] At paragraphs 31-32 and 35-40 inclusive.

Tewlen Pty Ltd v Melbourne CC [2014] VCAT 766

At a glance

Court

Decision date

Source

Judgment (69 paragraphs)

Tewlen Pty Ltd v Melbourne CC [2014] VCAT 766 (24 June 2014)

Parties