P1836/2008, P1917/2009, P2785/2009 - Applications to amend existing planning permit

1. In relation to the P2785/2009 application under Section 87A of the Planning and Environment Act 1987 to amend the existing planning permit No. 2004.320.1 dated 17 November 2004 ("Permit"), the Tribunal finds that Conditions 6, 7, 8 and 9 and the preamble of the Permit must be amended to the extent set out in the Appendix to this decision.
2. Having made the finding set out above, the Tribunal regards the other two related proceedings P1836/2008 and P1917/2009 as redundant and they are dismissed.
3. The Responsible Authority is directed to promptly re-issue the Permit in otherwise identical form, but incorporating the changes set out in the Appendix to this decision.

1. Given the Tribunal's findings set out above with the P2785/2009 proceeding, the Tribunal similarly regards this P1220/2009 Application for Enforcement Order as redundant, and it is dismissed accordingly.
2. This overall matter is now fully finalised.

Mr Jeremy Gobbo QC by direct brief, assisted by Ms Amanda Johns (Corporate Counsel). Mr Gobbo called expert traffic engineering evidence from Mr Greg Tucker of GTA Consultants.

Ms Sarah Porritt of Counsel, instructed by Phillips Fox DLA lawyers. Ms Porritt called expert evidence on cognitive psychology from Dr Steven Cloete of the University of Queensland.

The four different proceedings all relate to potential changes to the permit conditions of the existing planning permit no. 2004.320.1 dated 17 November 2004 which allows the "Erection of a major promotion sign, in accordance with the endorsed plans".

Four proceedings pursuant to the Planning and Environment Act 1987.

Three involve applications to amend the permit - an application under Section 87 initiated by VicRoads and the other two (a Section 87 and a Section 87A application) initiated by the permit holder.

The fourth is an enforcement proceeding lodged by VicRoads under Section 114.

The land is zoned Business 2 and there are no applicable Overlay controls.

Clauses 12, 14, 16.02, 19.03 and signage provisions at Clauses 52.05 and 52.05-6.

The sign is positioned on the top of a two storey office building located on the southwest corner of Nepean Highway and South Road. This is a busy intersection, with an 80 kph speed limit along this section of Nepean Highway. The surrounding area features a mix of commercial and residential uses. Apart from some smaller business identification signage, the subject major promotion sign is primarily visible for southeast bound motorists on Nepean Highway, driving approximately between Howell Street and South Road. It is also visible, but to a lesser extent, to motorists travelling west on South Road.

After the hearing, the Tribunal inspected both the appeal site and several comparable major advertising signs referred to during the hearing.

1. To avoid duplication, we refer to our primary decision in this matter dated 23 December 2009.
2. Suffice to say that this overall matter involves an advertising sign located on the top of the building at 354 South Road Hampton East. Three of the four proceedings involve proposed amendments to the existing planning permit no. 2004.320.1 dated 17 November 2004 ("Permit") . The key issue with these proceedings is proposed changes to the contentious Conditions 6-9 of the Permit conditions.
3. The fourth proceeding initiated by VicRoads is an Application for Enforcement Order, with VicRoads asserting that the sign has been operated in breach of the relevant permit conditions.
4. The hearing of this matter came before us on 11 and 12 November 2009. During the hearing we heard submissions from the parties and received expert evidence from Mr Greg Tucker on behalf of the applicant and from Dr Steven Cloete on behalf of VicRoads. The Tribunal inspected the site after the hearing and confirmed that the images being shown on the electronic sign included periods of full animation.
5. In our orders dated 23 December 2009, we provided reasons why we were unconvinced that the relevant Permit conditions should be amended so as to allow full animation. On the other hand, we also indicated that we supported some degree of change to the contentious permit conditions, so as to allow greater flexibility in terms of the images which may be shown on the subject sign. We also indicated that we intended to add the word "electronic" before the word "sign" in the preamble to the Permit.
6. We set out at the end of our decision the draft revised permit conditions and the proposed change to the Permit preamble, and gave the parties the opportunity to provide us with further written submissions regarding same.
7. In due course we received further comments from the parties, which we have taken into account in our findings set out below.
8. The Octopus Media letter of 2 March 2010 expressed concern that the VicRoads response went beyond the parameters of what our primary decision allowed, in terms of the scope of the opportunity for further comments. Given that the DLA Phillips Fox letter of 19 February 2010 (including attachments) came to 14 pages and included further images and comments on other Permit conditions beyond 6-9, we share this concern. Accordingly, we have only had regard to this 19 February 2010 letter and attachments to the extent consistent with our directions to the parties in our primary orders.
9. As part of this interim process, Octopus Media requested (and we granted) an extension of time for it to provide us further comments. The key factor relied upon by Octopus in seeking the extension of time was the unavailability of their key lawyers due to the January school holiday period. After the Tribunal granted the adjournment, we received a further letter from DLA Phillips Fox on behalf of VicRoads expressing VicRoad's disappointment that the adjournment was allowed, and seeking reasons for same.
10. It is not obvious to us why VicRoads has made such an issue of this "extension of time" point, as we would be very surprised if VicRoads could say that it had never itself sought additional time to respond to a Tribunal request. However for the record, we:
    • consider that the extension of time which we granted to Octopus was relatively modest and was procedurally fair in all the circumstances; and
    • rely on the fact that neither Council nor VicRoads were in our view able to provide evidence to the Tribunal pointing to any significant increase in traffic accidents for this intersection in recent years due to the operation of the contentious sign. Accordingly, we were satisfied that allowing a fairly modest extension of time would not lead to any tangible increase in the traffic accident risk posed by the operation of the sign next to this intersection.

1. There are three outstanding issues which we need to make findings on, being our resolution of the permit conditions, how we deal with the enforcement application and the costs application by VicRoads.

1. Having considered the further comments from the parties on our draft changes to conditions 6-9 and the minor change to the preamble, we do not (subject to one proviso) see any need to deviate from the position set out in our earlier decision.
2. That is, our view remains that:
   • the minor change to the preamble is appropriate; and
   • subject to one proviso, the revised Conditions 6-9 provide appropriate checks and balances, bearing in mind that there has been a substantial shifting of the goalposts away from the previous position under Condition 6 that "Any one display of or set of text must remain for a minimum of 30 seconds".
3. Where Octopus for example argued that there is no evidence to substantiate the requirement under condition 8(c) that the images not contain any phone numbers, addresses or website details, it might equally be said that there is apparently no available research evidence demonstrating that the provision of these details is innocuous in road safety terms.
4. To the extent that VicRoads would have preferred the Tribunal to take a more onerous position than that set out in our primary orders, we similarly find this unconvincing.[1]
5. The proviso is that we consider it fair and sensible to substitute the word "change" instead of "rotation" in Condition 6(a), where the latter word appears in that sub-clause.
6. We can also indicate that, in relation to these checks and balances, we are not necessarily suggesting that all of them should operate indefinitely. If further evidence arises (either with this sign or across the industry) that some of the requirements in the revised Conditions 6-8 are an overkill, this can always be revisited at that later time.

1. We are satisfied that the P1220/2008 enforcement application has been made redundant by our findings with respect to the revised permit conditions 6-9. Hence we have dismissed the enforcement proceeding.
2. In relation to the submission from VicRoads that the Tribunal should make some form of enforcement order in relation to:
   • the previous breaches by Octopus Media of the earlier version of the relevant permit conditions; or
   • the requirement that Octopus Media comply with the revised Permit conditions

we consider the former request to be pointless/nonsensical and the latter request to be premature/inappropriate. If in future a situation arises where it is alleged that Octopus is breaching the revised permit conditions, then new enforcement proceedings could be initiated as necessary at that time.

1. The DLA Phillips Fox interim response[2] included initial submissions supporting a costs claim by VicRoads against Octopus Media in each of the proceedings, and sought a further opportunity to advance that costs claim.
2. We note that our orders on page 2 of our primary decision did not include any reserving of the costs of any of these proceedings.
3. Our view is that these Tribunal proceedings have raised legitimate and complex issues relating to the operation of electronic signs and the merits or otherwise of the contentious permit conditions, in the context of it becoming more common over time for the driving public to be exposed to electronic signs (including roadway safety signs). This in turn has led to the Tribunal supporting significant changes to the existing Permit conditions. Our findings may well have broader implications in this industry and in relation to subsequent Tribunal hearings dealing with similar issues.
4. Whilst we might possibly have taken a different view if the Applicant had failed to convince us that the contentious permit conditions required modifications, we do not see the circumstances of these proceedings as coming close to satisfying us that we should allow for a further process to debate any costs claim. Rather, we are satisfied that the normal position should prevail that each party bears their own costs.
5. Whilst it is true that:
   • we have not allowed full animation to be shown on the sign; and
   • the Applicant at least implicitly admitted during the hearing that the sign was not operating in full compliance with the Permit

we do not see these factors as changing the basic position set out in the paragraph above. The reality is that the main focus of the hearing became potential modifications to the Permit conditions and, in that regard, we have supported substantial modifications.

APPENDIX - AMENDMENTS TO EXISTING PLANNING PERMIT NO. 2004/320

* the preamble to the permit is modified by inserting the word "electronic" before the word "sign;

* the following new conditions are inserted in their place:

"6. In relation to the images displayed on the sign:

(a) any one image must be presented in a completely static manner, but there can be a change of such static images, provided that such change cannot be quicker than one new image per two seconds;

(b) in relation to any one product or item being promoted by the sign, the images associated with that one product or item must as a group run for at least 15 seconds;

(c) the sign must not display advertising or messages which contain fully animated or video/movie style advertising or messages; and

(d) the sign must not be used for any live television, satellite, internet or similar broadcast.

1. The images displayed on the sign must not otherwise unreasonably dazzle or distract drivers due to their colouring and must not be capable of being mistaken:

(a) for a traffic signal because it has, for example, red, amber or green circles, octagons, crosses or triangles;

(b) as text providing road safety instructions to drivers.

(b) advertising or messages which contain any repeated directional motion, flicker or flashing content;

(c) phone numbers, addresses or website details; or

(d) images using an unreasonably high intensity of light in the sign.

1. The expiry date for this permit shall be 15 years from the date that the permit was issued."

[1] We are reminded here of the saying that if the Tribunal reaches a result that neither party is fully happy with, on one view this indicates the Tribunal has appropriately carried out its role.

[2] See the DLA Phillips Fox letter of 19 February 2010.