PLANNING SCHEME - interpretation or consideration of VPP provision

Interpretation of the decision guidelines of clause 52.05 -Advertising signage in respect of signs being a traffic hazard and safety risk.

APPLICATION - significant, interesting or unusual use or development; application of policy, provision or principle; or circumstances

Assessment of the possible traffic safety risks that arise from large digital signs located adjacent to main roads and intersections. The decision finds that large signs are a distraction to drivers to an extent they may contribute to traffic accidents. It is appropriate to apply a precautionary approach.

Westfield Corporation has recently completed a major refurbishment of its Westfield Shoppingtown complex in Doncaster. The new façade facing the intersection of Williamsons Road and Doncaster Road comprises a curved glazed wall in the order of three commercial storeys in height. It is proposed to replace part of this glazing with an advertising sign comprising LED panels. The sign would be 11 metres by 10.2 metres, with a display area of 112 square metres. It would be approximately 6 metres from the ground. Messages would have a 30 second dwell time.

The sign would directly abut a complex intersection. It comprises a cross intersection of two divided roads with multiple lanes. A third arterial road intersects approximately 60 metres from the main intersection. Access to the shopping centre and several local access roads add to the complexity. Approximately 6,000 vehicles travel through the intersection in its busiest peak hour. All movements through the intersection are controlled by signals and marked lanes. Several movements through the intersection are complex and require concentration. It also takes up to 130 seconds to complete some movements through the intersection.

The sign would be directly visible to motorists completing various manoeuvres.

Advertising signs are intended to attract attention and the human eye is particularly susceptible to distraction in the peripheral vision. The proposed sign is at least three times larger than other digital signs adjacent to roads, and positioned to be highly visible to drivers. They could see up to four transitions as they move though the intersection.

Driving is a complex task involving ongoing subtasks and monitoring and corrections. Expert evidence from a cognitive expert suggests drivers involuntarily glance to digital signs. There appears to be a correlation between glances longer than 1.5 seconds and propensity to have an accident, although research has not identified a clear link between distraction and traffic accidents. Recent research indicates the lack of clear evidence to date does not mean that no link exists. Decision makers should be cautious and apply the precautionary principle so the major advances in road safety are not diminished.

The proposed sign would also bee inconsistent with planning policies that encourage the intersection to be a gateway and to improve integration between the public realm and the centre's internal spaces.

Section 77 of the Planning and Environment Act 1987; Manningham Planning Scheme; Activity Centre Zone Schedule 1; Electronic sign; Urban gateway; Intersection complexity; Driver distraction; Propensity for traffic accidents

Westfield Limited v Manningham CC (includes Summary) (Red Dot) [2011] VCAT 1341

1. The decision of the responsible authority in relation to permit application no. Pl09/020626 is affirmed. No permit is granted.

Mr J Gobbo, QC, assisted by Ms J Forsyth, solicitor. They were instructed by Holding Redlich.

Mr J Brownlie, traffic engineer, Cardno Grogan Richards

Dr S Cloete, Research Fellow, Human Factors, University of Queensland

To erect an electronic promotion sign 11.2 metres high and 10 metres wide, approximately 6 metres above the ground, and facing the intersection of two main roads. The sign can display moving images and messages. The permit applicants propose a dwell time of 30 seconds.

Application under section 77 of the Planning and Environment Act 1987

Clauses 10, 12.05, 15.03, 15.12, 17, 18, 21.10, 22.07, and 65

The review site is located on the northeast corner of Doncaster Road and Williamsons Road, Doncaster. The sign would be erected on the curved façade of the Westfield Shoppingtown centre. The site is part of the frontage of the shopping centre.

The sign would face the intersection of Williamsons Road and Doncaster Road.

Land directly opposite to the south is used for dwellings in multi level apartment buildings. Land to the west is used for commercial offices.

I inspected the site and its environs on 21 and 24 June 2011. I also inspected similar LED signs at Kew Junction, St Kilda Junction, Flinders Street and Swanston Street, South Road, Hampton East and Dandenong Road, East Malvern. The parties did not accompany the inspection.

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

Asble Pty Ltd v Stonnington CC [2010] VCAT 1780

Octopus Media Pty Ltd v Yarra CC [2011] VCAT 298

VicRoads v Bayside CC [2009] VCAT 2734

VicRoads v Whittlesea CC [2011 P2450/2010 2 June 2011

Alanvale Pty Ltd and Anor v Southern Rural Water and Ors [2010] VCAT 480

1. Westfield Corporation has recently completed a major refurbishment of its Westfield Shoppingtown complex. The new façade facing the intersection of Williamsons Road and Doncaster Road comprises a curved glazed wall in the order of three commercial storeys in height. A large space below a corporate logo and directly adjacent to the intersection of the roads presently comprises glazing. It is proposed to replace this glazing with an advertising sign comprising LED panels. The sign would be 11 metres by 10.2 metres, with a display area of 112 square metres.
2. This sign would be one of four LED signs to be constructed at the centre. VicRoads is a referral authority and supported the construction of three of the signs, but directed council to refuse to grant planning approval for the sign proposed at the corner of Williamsons Road and Doncaster Road. Council duly issued a notice of refusal to grant a permit on September 2010 including the following ground required by VicRoads:

Sign 4 poses an unacceptable road safety risk, because the sign is likely to create a confusing or dominating background which may reduce the clarity or effectiveness of the traffic control devices including regulatory signs located in the Williamsons Road/Doncaster Road/Tram Road intersection.

1. Council subsequently issued a permit for the other three signs that comprised part of this application. Hence the only matter before me is sign four at the intersection of Williamsons Road and Doncaster Road.
2. The council and the permit applicant submit the sign is appropriate from an urban design viewpoint and would not generate offsite adverse amenity impacts for residents of nearby dwellings or staff in nearby businesses. They consider the sign would not distract drivers to such an extent that it would constitute a traffic safety hazard.
3. I must decide whether a permit should be granted and, if so, what conditions should be applied. The key issues that I must consider in this matter are:
   • Would the development be consistent with the planning policy framework?
   • Would the sign distract drivers to such an extent that it would be a traffic hazard?
4. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Manningham Planning Scheme, I have decided not to grant a permit. My reasons follow.

Would the development be consistent with the planning policy framework?

What are the key policy directions to guide my decision?

1. The State planning policy framework provides only broad guidance for assessing advertising signs. Land uses are encouraged to concentrate at higher intensity within activity centres.[2] Urban design strategies encourage the creation of good quality urban environments, and neighbourhoods are to be designed to contribute to safety and perceptions of safety.[3] Transport routes and nearby areas should be designed achieve visual standards appropriate to the importance of the route.[4]
2. Doncaster Hill, including Westfield Shoppingtown, is identified as a principal activity centre in State and local planning policy frameworks.[5] The vision for the centre encourages it to become vibrant and contemporary, with a strong sense of place and civic identity. This would be achieved, in part, through the application of contemporary architecture, combined with innovative urban design and building techniques.[6]
3. The Doncaster Hill strategic framework plan identifies the intersection of Doncaster Road and Tram Road as a "gateway/entry point" and

a preferred location for iconic artwork which defines its significance as the major cross roads and physical centre of the Doncaster Hill activity centre.[7]

1. The municipal strategic statement encourages Westfield Shoppingtown to be better integrated with the Doncaster Hill Activity Centre. This is to be achieved by activated street frontages and external spaces and "improved engagement with the main intersection." Gateway treatments at the intersection of Williamsons Road and Doncaster Road should enhance the special identity of the activity centre and could comprise:

buildings showcasing unique contemporary architecture, artwork, lighting, distinctive tree planting and well designed signage.[8]

1. Whilst signage is encouraged as part of creating gateways and reinforcing the prominence of the activity centre, signage and displays should be:

well designed and positioned to respect the amenity and safety of users, including the protection and enhancement of view lines and vistas and the boulevard character.[9]

1. Council considers the intersection to be a suitable location for high quality public art to identify a distinctive place. Council would prefer Doncaster Road, where it passes through Doncaster Hill, to be more a "main street for people" and less an arterial road that efficiently carries high traffic volumes. This could be achieved by reducing the number of lanes to two, allowing on-street parking, improving street tree planting and encouraging retail and food and drink premises to directly front Doncaster Road.[10]
2. Local planning policies encourage themed signage displaying advertising themes or patterns, presumably in preference to disparate and unco-ordinated signage.[11] Signs along main roads and within commercial areas are to be designed and located to minimise adverse impacts on the amenity of the area and to have regard to safety and efficient traffic movement. Signs should also reflect the architectural design of the building on which they are located and not be traffic hazards. [12] Flashing and intermittent signs are discouraged and signs must not interfere with driver sight-lines.
3. The land is included in the Activity Centre Zone. The purposes of the zone include:

To encourage a mixture of uses and the intensive development of the activity centre

• as a focus for business, working, housing, leisure, transport and community facilities.

To create through good urban design an attractive, pleasant, walkable, safe and stimulating environment.

1. Westfield Shoppingtown is included in precinct 4 in the Schedule to the zone. The objectives for the precinct are consistent with the municipal strategic statement and local policies and of relevance to this matter, include maintaining positive engagement with the main intersection, and maintaining a landmark building/gateway at the intersection.
2. Advertising signs must meet the requirements specified in clause 52.05 (Advertising signs). Land within an Activity Centre Zone is within category 1 (business area signage). This sign is a major promotion sign and requires planning permission.
3. The purposes of clause 52.05 are
   • To regulate the display of signs and associated structure
   • To provide for signs that are compatible with the amenity and visual appearance of an area, including the existing or desired future character
   • To ensure signs do not contribute to excessive visual clutter or visual disorder.
   • To ensure that signs do not cause loss of amenity or adversely affect the natural or built environment or the safety, appearance or efficiency of a road.
4. Clause 52.05-6 provides that major promotion signs should achieve high visual quality standards, not be detrimental to the appearance of their surroundings or adversely affect the safe and efficient operation of the route.
5. In determining this matter, Clause 52.05 requires me to consider, as appropriate:
   • The character of the area
   • Impacts on views and vistas
   • The relationship to the streetscape, setting or landscape
   • The relationship to the site and building
   • The impact of structures associated with the sign
   • Impact of illumination
   • Impacts of any logo box associated with the sign
   • The need for identification and opportunities for adequate identification on the site or locality
   • The impact on road safety.
6. Clause 52.05-3 identifies a sign to be a safety hazard if it is poorly sited or if it could dazzle or distract drivers due to its size, design or colouring, or it being illuminated, reflective, animated or flashing. Signs would be a safety hazard if located where particular concentration is required such as a high pedestrian volume intersection.

Would this sign be consistent with planning policies for the activity centre?

1. The permit applicant and Council submitted that this proposed sign complies with many of the preferred outcomes set out in the planning scheme. In their submissions the sign would be:
   • integrated into the built form of the façade to Westfield Shoppingtown and not appear as a standalone sign or as an afterthought, or require imposing, unattractive or incongruous structures.
   • "iconic" and would identify the centre and intersection as a place that is significant and notable within Manningham and its wider region.
   • consistent with council's intent to transform Westfield Shoppingtown and Doncaster Road to a main street with active street frontages rather than blank walls.
   • themed with other signage present in the centre, consistent with the three signs that initially formed part of this application.
   • one of several signs on the façade of the shopping centre that have been located in accordance with an overall plan rather than in a piecemeal or ad hoc manner.
2. I generally concur with the permit applicant that the structure and appearance of the proposed sign are consistent with many of the directions in the planning scheme. It is clear the façade of Westfield Shoppingtown has been designed to accommodate a large display or sign in this location as the proposed location already has a large black border around it. It would be within the façade, it would not protrude beyond the façade, there would not be unattractive structures, and it would be consistent with other existing and recently approved signage. I agree the sign would put Westfield Shoppingtown "on the map" and be a recognisable feature in Melbourne's outer eastern region.
3. I also concur with the parties that the sign would have no adverse impacts on the amenity of the area as it is presently developed. The sign's orientation to the southwest across the intersection would mean it would not be directly opposite any existing dwellings or those presently under construction in Doncaster Hill. Thinking of the future development of the Doncaster Hill precinct, I think it could cause adverse amenity outcomes for residents of any multi level residential building developed to the southwest of the corner of Doncaster Road and Tram Road. The sign's illumination and transitions could be notable, particularly at night. However, as this matter was not examined in the hearing, I give it limited weight.
4. It would be directly visible from the existing office buildings to the southwest and west. There may be a mix of views about its effects on the amenity of staff and visitors. Some might find it distracting, whilst others might enjoy the messages and see it a normal part of a commercial building. Over time the awareness by staff of the sign might diminish and it could form part of an overall visual background. As there were no objections lodged from nearby commercial premises, I conclude that any adverse amenity impacts would be considered by those businesses to be limited.
5. Westfield Shoppingtown is located at the crest of a hill. Shoppingtown and the nearby apartment buildings can be seen from a considerable distance from the west and southwest. Views of the sign from the west would be screened by buildings on the west side of Williamsons Road. Views from the south and southwest would be screened by vegetation and buildings. The most prominent views would be within 200 metres from the facade I do not think the sign would be visible from long distance views, and I conclude this sign would not be a dominant and discordant feature in the wider urban landscape.
6. The parties considered urban design to be uncontested and the sign to be a suitable addition to the buildings' façade. I am not persuaded a very large advertising sign is an appropriate way to achieve the iconic gateway and the engagement between the public and private realms encouraged by planning policy. A consistent criticism of large integrated shopping centres such as this has been their appearance from the outside as inward looking "fortresses" that prevent casual interchange between those inside and outside. The recently completed façade avoids this. It achieves a transparency that should be retained, and the causal surveillance should not truncated by advertising signage. I think the existing glazing should be retained, as it provides an opportunity for casual surveillance between people in the streets and within the shopping centre. Reducing that casual interaction would be undesirable and inconsistent with the overall intention to improve engagement between the private commercial area and public realm.
7. The local planning policy framework give considerable weight to the intersection of Doncaster Road and Tram Road becoming a focal point for the municipality through iconic art work and other elements. Council and the permit applicant thought this sign would achieve this outcome. I am not persuaded this advertising sign would necessarily achieve the outcome sought by the planning scheme.
8. I do not think it would be a focal point that would foster community or identity. For example it is difficult to see it as a place where people could gather to watch a special sporting or community event, or be informed of important community events or emergencies. It would be located on the corner of a busy and large intersection where there is no public space to enable people to watch it. People would need to stand on the median strip or in the landscape areas of the office buildings on the west side of Doncaster Road. It is designed to be seen only by motorists passing by.
9. I think there are many ways to denote this intersection as a gateway. The new façade of Westfield Shoppingtown makes a positive contribution to a sense of gateway by being of high architectural quality and interest. The taller buildings underway in the precinct will create a new character that will be so different to elsewhere in Manningham that it will be readily identified as afocal point. This emerging character can be augmented by iconic sculptures such as those seen along Harbour Esplanade in Docklands, or adjacent to Eastlink Freeway and elsewhere in Manningham. Iconic sculptures, artwork, landscape materials and the like can be highly effective in capturing the community imagination and reflecting shared values and aspirations. I think the planning scheme calls for ways to identify this intersection as a focal point in ways more imaginative than through a large advertising sign that is likely to display information only about commercial products and services.
10. On balance, whilst this sign would be consistent with some aspects of planning policy, I do not consider that it is fully meets the aspirations of policy. I think it would be contrary to policies that call for improved integration between the public spaces within and external to the centre. I also consider there are many ways to identify this intersection as a prominent gateway in Melbourne's eastern region.

Would the sign distract drivers to such an extent it would be a traffic hazard?

1. It was common ground that any advertising sign, indeed any sign, is intended to attract the eye of the observer. There was also general agreement that signs which are animated and convey moving, animated images are more eye catching and distracting than static signs. This agreement was generally consistent with the conclusions drawn by traffic and cognitive experts and by the Tribunal generally in decisions regarding advertising signage. There was no dispute amongst the parties that this sign would attract the attention of drivers.
2. VicRoads submitted this sign would distract drivers to such an extent it could be a traffic hazard, and its approval would be "playing the odds" and inviting accidents. The applicant submitted that the sign would not pose a traffic hazard as the intersection is inherently safe. I have to consider whether this sign, at this particular intersection, would distract drivers to such an extent it would constitute a traffic hazard.

What are traffic characteristics of this intersection?

1. The intersection of Williamsons Road and Doncaster Road comprises a cross intersection. Each of these roads has three through lanes and dedicated turning lands. Elgar Road intersects with Doncaster Road approximately 60 metres to the west of the cross intersection. Elgar Road includes two through/right turn lanes and one land for left turning vehicles.
2. Several "local" roads intesect with the main roads near the intersection. Westfield Shoppingtown is also accessed from both Williamsons Road and Doncaster Road near this primary intersection.
3. The intersection is controlled by an integrated traffic control system and all movements are subject to traffic lights. Turning lanes are line marked.
4. Doncaster Road carries approximately 30,000 vehicles per day (vpd), Williamsons Road carries 25,000 vpd and Tram Road and Elgar Road carry 10,000 vpd and 8,000 vpd respectively. Approximately 6,000 vehicles travel through the intersection at its busiest time on a Friday evening peak hour.
5. Mr Brownlie gave evidence on behalf of VicRoads. He completed a SIDRA analysis that indicates some legs of the intersection are operating at the "poor" category and queues are becoming longer. The particular legs operating poorly are the north side of Williamsons Road and Doncaster Road (west).
6. Most manoeuvres through the intersection are controlled by traffic lights, and hence travel times through the intersection are lengthy. Travelling north from Elgar Road/Doncaster Road to Williamsons Road could take as long as 134 seconds. Completing a right hand turn from Tram Road to Doncaster Road can take as long as 77 seconds.
7. Whilst not documented, there is some pedestrian movement through the intersection. This appears to comprise people walking from the nearby offices to the centre and food outlets on Doncaster Road and within the shopping centre.
8. The sign would be visible to motorists from approximately 20 metres from the stopping point in Elgar Road (screened by a building) and as far away as 200 metres on Tram Road and 160 metres on Doncaster Road (eastbound).
9. There are four traffic movements through the intersection that might be adversely affected by the proposed sign. These are:
   • right turn movements from Tram Road turning east to Doncaster Road.
   • right turn movements from Elgar Road turning east to Doncaster Road.
   • eastward trips along Doncaster Road.
   • a "switchback" movement comprising a right turn from Elgar Road to Doncaster Road immediately followed by a left turn from Doncaster Road to Williamsons Road.
10. There have been between 15 and 18 serious accidents and fatalities reported to police at the intersection in the past five years.

1. Signs distract. Dr Cloete, an expert in sensory control mechanisms, stated the human visual system is highly sensitive to sudden changes in the visual field, particularly in the peripheral visual field. The allocation of attention to sudden changes is involuntary, he thought possibly due to our well developed survival mechanisms wired to detect better equipped predators. Dr Cloete advised that studies have demonstrated digital billboards attract attention for longer periods than static signs. Animation, moving messages and transition from one sign to another would catch the eye and be a distraction from other tasks. Distraction is defined to be

a diversion of attention from the primary task if driving. Eye movement is important for accurate and precise control of heading, we look in the direction we steer. Prolonged diversions of gaze from the intended path will impact negatively upon the accuracy and stability of steering.

1. It has been assumed that driving is an automatic task, and people have capacity to perform secondary or other non driving tasks. Driving actually comprises many discrete integrated subtasks each of which demands differing degrees of attention and sensory feedback. When the secondary task or irrelevant sensory information exceeds capacity limitations, and diverts resources from the driving tasks, the distractions become potentially dangerous. Young, older and inexperienced drivers are the most at risk driving groups. Young (18 to 25 years) and inexperienced drivers are not good at filtering information, and older drivers (50 years plus) have lesser capacity to quickly extract and process primary information.
2. Studies show that drivers divert their gaze towards electronic billboards for demonstrably unsafe periods of time. Research indicates that the longest 22 percent of eye glances were associated with 86 percent of collisions. Glances greater than 1.5 seconds were associated with higher accident rates. Watchel (2009) provides the most recent and comprehensive review of studies of driver distraction. He concludes that there is:

access to a strong and growing body of evidence including evidence from industry supported research, that roadside digital advertising attract (sic) drivers eyes away from the road for extended unsafe periods of time.

1. The permit applicant opined there has been no notable increase in accidents following the erection of digital signs in other locations in Melbourne. I am persuaded the comparison of accident statistics before and after the installation of signage provides an incomplete basis to assess the effect of new signage. Accident statistics usually include only serious accidents, and do not include minor property accidents. People may not report minor accidents as they do not want to admit liability, or incur additional costs and insurance premiums. Near misses and accidents averted by evasive action are not reported. Accidents are multi causal hence the real causes are unknown and cannot be known.
2. Dr Cloete fairly concluded that a direct link between distraction and accidents is yet to be established and further research is needed. He agreed it is not possible to estimate the impact on accident risk with any degree of precision, and it is very difficult to measure the before and after effects of a new sign as road conditions, change and accidents are multi causal. This Tribunal has consistently found definitive research linking signage to accidents is lacking or at best indefinite.
3. However, he thought there is a growing body of research that points to the fact that drivers divert their eyes to digital signs for prolonged times, and that road safety would be compromised. He opined:

a conclusion that significant safety impacts do not exist is premature, and is highly likely to be disqualified as more empirical evidence is generated.

1. Dr Cloete recommended avoidance. His view echoes the finding of a report to the NSW Road Traffic Authority that recommends digital billboards be not be permitted along roadways. This report also recommends that if avoidance is not supported, a sign should be configured to be as much like a static display board as possible.
2. I acknowledge the there is not yet clear and unambiguous evidence that a digital sign would inevitably lead to increased accidents. However, I am persuaded there is sufficient doubt that I need to be very cautious in this matter. I have no doubt this particular sign in this particular location would be a distraction to drivers. Furthermore I think its location, size and proximity to complex and difficult manoeuvres in an increasingly congested intersection would make it a potential safety hazard. The possibility of risk cannot be ignored or easily dismissed.
3. Firstly, the proposed sign is very large. At 112 square metres, it is substantially larger than any other digital sign approved in Melbourne. A digital sign rejected by the Tribunal in City Road Southbank was to be 30.72 square metres. A sign approved by the Tribunal at Bridge Road Richmond is to 30 square metres. Another sign rejected by the Tribunal in Flemington was to be 14 square metres. A similar sign at the intersection of South Road and Nepean Highway is in the order of 30 square metres. Finally a sign in Dandenong Road, Malvern is 27 square metres. Whilst not having access to their precise dimensions, it is my belief this proposed sign would also be substantially larger than the digital signs at St Kilda Junction, Kew Junction and on "The Age" building opposite Southern Cross train station. Its large size would make it very imposing and dominant at this intersection.
4. Secondly, it is to be located closer to the intersection than many approved digital signs. This sign would be adjacent to the two road reserves, on the façade of the building. It could not be any closer without being within the road reserve. It would be approximately 55 metres from the centre of the intersection of Williamsons Road and Doncaster Road. It is within the vision of motorists at precisely the point they are making complex manoeuvres that require a high level of concentration. Other similar signs are generally located at the periphery of drivers vision. For example similar signs are Kew junction, St Kilda junction, Southern Cross Station and on Dandenong Road are located some distance from the road reserve and/or at a considerable height above drivers vision.
5. Thirdly, the proposed sign would be at a lower height and be more central to turning movements than many other approved signs. The base of the sign would be approximately 6 metres above ground level. As the road rises from west to east, the sign would appear in the centre of driver's views when travelling west to east or south to north. Hence, drivers making the most complex manoeuvres to the east and north would slope upwards, placing the sign centrally in the drivers vision, regardless of whether it has movement or is static. Dr Cloete observed that eye movement tends to be horizontal and billboards at driver eye level are more likely to be distracting. Billboards set at height and to the side of roads in the extreme of driver peripheral vision are less distracting than signs at the horizontal level, even in the peripheral limits. Dr Cloete cited research which indicates that billboards placed at street level attract more "longer duration driver fixations" than similar sized advertisements placed higher. This central location is lower and more central than similar signs at St Kilda Junction, Kew junction and South Road that are towards the top of multiple storey buildings and at the edges of the peripheral vision of drivers.
6. Mr Brownlie's evidence indicated that drivers take up to 134 seconds to travel through this intersection. Even with this relatively long dwell time, drivers are likely to see the sign change up to four times as they move through the intersection. It might be said the actual time to make the most difficult parts of the various turns is relatively short, perhaps less than 10 seconds, as most of the time is spent stationary at lights when being distracted by the sign may not be a problem. But, even when stationary, drivers might be distracted by the sign. Distraction whilst being stationary at the lights might be problematic if it causes drivers to hastily resume driving and possibly proceed into and through the intersection without full cognition of the traffic conditions. For example, when the signals allow a forward movement, a distracted driver might miscue lane directions, be slow to start and then feel the need to travel at speed so as not to miss the lights. A distracted driver might fail to see cars in front slowing or braking as they move through the intersection.
7. Completing a right hand turn from Tram Road or Elgar Road to Doncaster Road, or the left turn from Elgar/Doncaster Road to Willamsons Road, are difficult as these turns include more than one lane of traffic diverting to multiple lanes. Drivers turning left from Doncaster Road to Williamsons Road must choose one of two lanes, watch for pedestrians and then merge with on coming traffic, and choose their preferred lane in wialliamsons road. Some may wish to merge fully to the right hand lane in Williamsons Road so they can access the entry to Westfield Shoppingtown a short distance from the primary intersection. These manoeuvres require concentration. Being distracted by a change of sign could be highly hazardous.
8. The parties accepted this is now a busy intersection. In the order of 6,000 vehicles per hour travel through the intersection at the Friday evening peak hour. This intersection will become even more busy and complex. A necessary outcome of successful urban consolidation policies and intensive development at Doncaster Hill will be more cars on the road and more pedestrians crossing between the apartments, offices, cafes and shops. With more older drivers on the road as the baby boomer generation ages and continues to drive, the potential for risk and difficulty is apparent. I think it is a risk that cannot be lightly dismissed.

Should I apply a conservative precautionary principle to this matter?

1. I am satisfied this sign would dazzle and distract motorists, could distract a driver from performing his/her task, could contribute to loss of safety and compromise the efficient operation of the road. I find it would be inconsistent with the decision guidelines of clause 52.05.
2. As a society we been successful in reducing the Victorian road toll from its shocking peak of over 1,00 deaths per annum in the early 1970's to approximately 300 deaths last year. There are still many serious traffic injuries that transform people's lives. Achieving this reduction has required prolonged improvements in vehicle design and safety, improved driver training and testing, and minimisation of poor driver behaviours such as intoxication and use of in vehicle distractions. Massive public resources have also been committed to improving road design and safety, particularly through better design and signallisation of complex intersections.
3. Overall we have been remarkably successful. The number of vehicles on the road and the total kilometres travelled has increased significantly since the 1970's and yet the number of deaths and serious injuries has decreased. Reducing the road toll has been one of the great success stories of public policy. However, the task continues on, as people continue to die and be seriously injured, and families are adversely affected by road trauma. We need to continue these improvements and support the efforts of the road management authorities in their endeavours to make motoring safe.
4. I concur with previous Tribunal commentary that the research to date has not demonstrated a compelling link between driver distraction and accidents. Dr Cloete acknowledged the lack of compelling research. However he thought evidence of a link between distraction and accident is slowly emerging from the many studies. As Watchel notes:

that a relationship has not been reported between crashes and changeable signs already installed in Australia probably reflects the fact that such a relationship has not been investigated rigorously or at all. The absence of evidence is not evidence of absence.

1. In my view the precautionary principle should guide my decision.

The precautionary principle is a statement of common sense and has already been applied by decision makers in appropriate circumstances prior to the principle being spelt out. It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decisions makers should be cautious.[13]

1. I consider I must be very cautious in this matter and give weight to the concerns of the road management authority. I agree that digital signs offer exciting display and advertising opportunities. In the right place, they can enliven public places (such as Federation Square and sports grounds) and can be a focal point for community life and engagement. However, I think this sign is very large, and being located within direct eye sight to difficult turning movements in a busy and complex intersection, it would be highly likely to distract drivers. Therefore, I am satisfied it would be highly likely to contribute to traffic accidents and diminish advances in road safety. In my view, it is the wrong sign in the wrong place, and I am unable to give it my approval.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be affirmed and no permit be granted.

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

[7] Map 1 Doncaster Hill Strategic Framework Plan in clause 21.09

[11] Clause 22.07 Outdoor Advertising Signs Policy

[13] Leatch v National Parks and Wildlife Service [1993] 81 LGERA 270 at 282