Main Roads (Control of Advertisements) Regulations 1996

The regulations rely on several key concepts, not all of which are defined within the instrument itself. The term exhibit is defined broadly in regulation 3 to include putting an advertisement in place, affixing it to a structure, painting or drawing any figure, letter or representation, inserting, deleting or changing any content, and maintaining the advertisement. This means that simply repainting a faded sign or updating the wording constitutes a fresh act of exhibition, potentially requiring a new approval or at least falling under the Commissioner’s continuing regulatory oversight. The definition captures ongoing activity, not merely the initial installation.

However, the terms hoarding, other advertising structure, and advertisement are not defined in these regulations. Their meaning must be drawn from ordinary language, relevant planning law, or the Main Roads Act 1930. This introduces interpretive uncertainty. A person might reasonably disagree about whether a temporary sign or a banner qualifies as a hoarding. Similarly, vicinity of a highway or a main road is not defined, leaving a large grey area as to how far from the road the control zone extends. The Commissioner’s opinion as to what constitutes the vicinity effectively determines the regulation’s reach.

The approval process itself involves a dual consent regime. Under regulation 7(4), the Commissioner must not approve an application unless satisfied that the local government of the district has approved the hoarding, structure, or advertisement under the Local Government Act 1995 and the Town Planning and Development Act 1928, and that any local government conditions are consistent with the Commissioner’s approval. This creates a sequential or concurrent obligation: the applicant must first secure local government approval (under planning and local law) and then obtain Commissioner’s approval. The local government approval is a precondition, not merely a consideration. If the local government refuses, the Commissioner has no power to approve. If the local government imposes conditions, those conditions must be consistent with any conditions the Commissioner wishes to impose.

Two grounds give the Commissioner significant discretion to refuse, revoke, or issue directions: hazardous to traffic safety and aesthetically objectionable. Neither term is defined. Aesthetic objectionability is inherently subjective. The Commissioner may form an opinion without reference to any objective design guidelines or community standards. Once the Commissioner forms that opinion, the power to revoke an existing approval under regulation 10(1)(a) or to direct removal under regulation 11(2)(c) arises. There is no requirement that the hazard or aesthetic issue be material or that the advertiser be given an opportunity to modify before revocation, only that a seven-day notice of intention to revoke be given (regulation 10(2)).

The regulations directly affect any person or business that wishes to place outdoor advertising visible from a highway or main road in Western Australia. This includes outdoor advertising companies, retail outlets, real estate agents, tourist attractions, event promoters, and any business that uses directional signage. Because the definition of exhibit includes maintenance, even an existing approvalee must continue to comply with conditions and the ongoing aesthetic and safety standards imposed by the Commissioner. Property owners are also affected: under regulation 11(3)(b), if a hoarding or structure is erected on private property, the Commissioner may direct the property owner to remove it, regardless of who erected it. This shifts the compliance burden to the landowner, who may not have been the advertiser.

Local governments are affected because they must exercise their own approval powers before the Commissioner can approve. This imposes a coordination cost on applicants, who must navigate two separate approval processes with potentially different criteria and timings. The local government’s decision under the Local Government Act 1995 and the Town Planning and Development Act 1928 effectively becomes a gatekeeper. If the local government refuses or imposes onerous conditions, the Commissioner cannot approve, and the applicant has no right of appeal to the Minister against the local government’s decision within this regulatory framework.

The Commissioner and the Commissioner’s officers are the primary administrators and enforcers. They have broad powers to enter land (including private property after non-compliance with a direction) and to obscure, modify, reposition, or remove signs without a warrant or court order. Regulation 12(1) allows entry onto land other than private property without notice to the approvalee or owner. For private property, entry is permitted only after a direction under regulation 11 has not been complied with within the specified period. The decision to enter is taken by the Commissioner or authorised officer, and there is no requirement to obtain a court order first. The person directed may later challenge the cost recovery in court, but the removal itself can be executed swiftly.

The Minister hears appeals under regulation 8. The appeal right is limited: only a person dissatisfied with a refusal, a condition, or the duration of approval may appeal within 28 days. There is no appeal against a revocation decision or a direction to remove. The Minister’s decision is expressed as final, though judicial review on administrative law grounds remains theoretically available. This concentrated finality in one political office reduces the incentive for careful initial decision-making and increases legal uncertainty for advertisers.

The primary duty is to obtain the Commissioner’s approval before erecting, constructing, or exhibiting any sign that is not exempt under regulation 4. This duty applies to the person who causes the sign to be erected or exhibited. There is no duty to apply for approval for exempt signs, but the burden of proving that a sign falls within the exemptions lies with the person relying on the exemption. The exemptions are narrow: for example, the business name sign exemption of 0.4 m² applies only if the sign is affixed to a building or erected on or behind the building line. A detached sign on a nature strip, even smaller than 0.4 m², would require approval if it exceeds 0.2 m² and is between the road boundary and the building line.

Applicants have the right to apply for approval in a form approved by the Commissioner and to have the application considered. The Commissioner must not approve unless the local government has approved, but there is no positive duty on the Commissioner to approve even if local government approval is obtained. The Commissioner retains discretion to refuse on safety or aesthetic grounds or for any other reason not precluded by law. The applicant must provide such other information as the Commissioner requests, giving the Commissioner wide investigative power without statutory limits on the type of information that can be demanded.

If approval is granted, the approval notification must set out any conditions and the period of approval. The approval period is entirely at the Commissioner’s discretion. An approved sign may have a term of one year, five years, or any other period the Commissioner chooses. There is no statutory default period or renewal right. This means the advertiser bears the risk of non-renewal and must reapply, triggering a fresh round of approval and potentially different conditions.

The person who obtains approval has the right not to have the approval revoked without procedural notice. Regulation 10(2) requires the Commissioner to serve written notice of intention to revoke, stating grounds, and to allow the person seven days to remove the sign, make it non-hazardous or non-aesthetically objectionable, or provide reasons against revocation. This is a weak procedural protection: seven days is a short period, and the Commissioner is not required to conduct a hearing or provide reasons for the final revocation decision. The decision to revoke is not appealable to the Minister.

A person directed under regulation 11 to remove or transfer a sign may comply voluntarily, avoiding the Commissioner’s entry and cost recovery. The direction must be in writing, specify the compliance period, and state the consequences of non-compliance. The person directed has no express right to object or seek review of the direction, other than the general right to seek judicial review in the Supreme Court. The direction can be given to the property owner even if that owner did not erect the sign, imposing a duty on the owner to deal with the sign at their own expense.

The penalty for contravening regulation 5 (erecting or exhibiting without approval) is $40. The same penalty applies under regulation 9(2) for contravening or failing to comply with an approval condition. A $40 fine for an offence that may involve a large commercial billboard is trivial; it functions as little more than a token deterrent. The regulations have not been amended to increase this penalty since 1996. Inflation has reduced the real value of the fine substantially. A business may rationally decide to risk a $40 fine rather than go through the approval process, especially if the sign is likely to operate for months or years before detection.

The more significant enforcement tools are the Commissioner’s powers to issue directions, enter land, remove signs, and recover costs. Under regulation 13, if a person directed under regulation 11 does not comply within the specified period, the costs of removal, modification, or repositioning by the Commissioner or authorised persons become a debt due to the Commissioner, recoverable in a court of competent jurisdiction. There is no cap on these costs. They can include labour, equipment, legal costs, and any other expenses. The person directed bears the risk of a potentially large liability for non-compliance with what may be a subjective direction based on aesthetic objectionability.

Regulation 14 gives the Commissioner the power to dispose of removed items in any manner the Commissioner thinks fit. If the items are sold, the proceeds must be applied first to the costs of removal, then to any penalty imposed under the regulations, and any balance paid to the person who proves entitlement. If the costs exceed the proceeds, the Commissioner can recover the shortfall as a debt. This creates a strong incentive for the affected person to comply with a direction promptly. The Commissioner also benefits from a self-help remedy without having to obtain a court order for possession or sale.

Enforcement by the Commissioner can occur without notice on non-private land (regulation 12(1)). This includes road verges, footpaths, and other Crown land. The Commissioner, officers, or authorised persons may obscure, modify, reposition, or remove a sign on such land without prior notification to the approvalee or owner. This gives the Commissioner a first-strike capability against signs the Commissioner considers hazardous or aesthetically objectionable. There is no requirement to issue a direction before acting on non-private land, only for private property after a direction has been ignored.

The regulations operate as a specific control under the Main Roads Act 1930, but they expressly condition the Commissioner’s approval on prior or concurrent approval by the local government under the Local Government Act 1995 and the Town Planning and Development Act 1928 (now largely superseded by the Planning and Development Act 2005). This interaction creates a layered approval system. The applicant must satisfy two separate statutory regimes. If the local government imposes a condition that the Commissioner considers inconsistent with the Commissioner’s own approval, the Commissioner cannot approve. The regulations do not provide a mechanism to resolve inconsistency between the two levels of government; the Commissioner simply withholds approval.

The Town Planning and Development Act 1928 has since been replaced by the Planning and Development Act 2005, but the reference in the regulations has not been updated. In practice, the relevant planning scheme controls under the current Act will apply. This may create confusion as to whether a reference to the repealed Act is effective. The Interpretation Act 1984 would likely permit a reading that the reference includes the successor legislation, but the regulation has not been formally amended to reflect the change.

The regulations also interact with any local government by-laws or local planning policies that regulate advertising. For example, a local government may have its own sign control regime under its local laws or town planning scheme. These may impose additional restrictions beyond the Commissioner’s conditions. An applicant must comply with all applicable laws, not just these regulations. The regulations do not purport to exhaustively govern signs on main roads; they add a layer of control rather than replace other controls.

The regulations do not interact with the Australian Road Rules or the Road Traffic Act 1974 in any express way, but signs that are hazardous to traffic safety may also constitute an offence under those laws. For example, a sign that distracts drivers may be a traffic hazard under general road safety provisions. The Commissioner’s power to act on safety grounds is separate from and additional to any police or traffic authority powers. This could result in multiple enforcement actions for the same sign.

The regulations repealed the Main Roads (Control of Signs) Regulations 1983. The savings and transitional provisions in regulation 15 deem existing consents to be approvals under the new regulations. This means the change in regime did not disrupt existing signage rights, but the continuation of those rights depends on compliance with conditions that were imposed under the old regulations, now treated as applying to the new approval. There is no requirement for existing sign owners to reapply, but the Commissioner could revoke the deemed approval on any ground under regulation 10, including aesthetic objectionability, if the sign becomes objectionable over time.

The regulations were gazetted on 14 June 1996 and commenced on 1 July 1996. The only reprint is the one before the analyst, dated 23 April 2004. No amendments are recorded in the compilation table. The regulations appear to have remained substantively unaltered since 1996. The absence of amendment history means the $40 penalty has never been adjusted, the reference to the Town Planning and Development Act 1928 has never been updated, and the exemptions have never been expanded or recalibrated. This stasis is notable given that the value of the dollar has halved over that period and planning legislation has been replaced.

The lack of amendment may reflect that the regulations are low on the legislative priority list or that the regime is considered fit for purpose by the administering body. However, it also means that certain provisions, such as the seven-day notice period for revocation and the narrow exemptions for business signs, have not been modernised to reflect changes in advertising technology (e.g., digital billboards, interactive signs) or changes in land use patterns. The Commissioner’s powers, however, are broadly worded enough to arguably cover digital displays, but the lack of clear definitions may lead to disputes.

If any amendments have been made through subsidiary legislative changes not reflected in the 2004 reprint, they are not captured in the source provided. The user’s source is the reprint as at 23 April 2004. A thorough practitioner would need to check the current version on the WA legislation database.

The source text does not mention any cases. The regulations themselves provide no litigation history. Because the regulations operate at a relatively low-stakes level (signs, small penalties) and the appeal is to the Minister whose decision is final, there may be few reported decisions. Most disputes likely resolve through administrative processes or are settled without publication.

However, the potential for litigation exists on several grounds. The Commissioner’s exercise of discretion on aesthetic grounds could be challenged for unreasonableness under administrative law. The power to enter private property under regulation 12(2) after a direction has not been complied with could be challenged as an unreasonable search or trespass if the direction was invalid or the notice period inadequate. The cost recovery provisions under regulation 13 could be contested as to the quantum of costs or the validity of the underlying direction. There is also scope for a constitutional challenge regarding the delegation of legislative power or the conferral of unfettered discretion on an administrative officer.

The regulations are not subordinate legislation under the Main Roads Act 1930; they are regulations made under that Act. Their validity depends on the enabling Act. Any challenge to a regulation would need to show it is beyond power or inconsistent with the Act. The source does not indicate whether any such challenge has been brought, and the analyst cannot invent cases.

Several aspects of the regulations create traps for the unwary. First, the definition of exhibit includes maintenance. This means that simply repainting an existing sign, replacing a faded panel, or changing a number could be treated as a new exhibition requiring separate approval. If the sign has an approval with a fixed term, maintenance activities within the term are likely still subject to the original approval conditions, but the Commissioner could argue that a material change constitutes a new exhibition. The safest course is to treat any alteration as requiring a fresh application, even if it is only colour changes.

Second, the lack of a definition for vicinity gives the Commissioner de facto power to regulate signs that are some distance from the road. A sign on a building 200 metres from the highway could be considered in the vicinity if the Commissioner forms that opinion. There is no statutory buffer zone or distance limit. This creates regulatory uncertainty for businesses located near main roads but not immediately adjacent to them. They cannot rely on distance as a safe harbour.

Third, the $40 penalty is so low that it may not deter non-compliance, but the real sting comes from the cost recovery and removal provisions. An advertiser who ignores the regulations may find the Commissioner removing the sign and invoicing for thousands of dollars in removal costs, which are recoverable as a debt. There is no requirement for the Commissioner to obtain a court order before entering land, and no cap on the costs that can be recovered. A sign that costs $500 to remove could generate a $5,000 bill if the Commissioner uses expensive contractors.

Fourth, the appeal rights are narrow and time-limited. An appeal against a condition or duration must be lodged within 28 days of receiving notification. There is no appeal at all against a revocation decision or a direction to remove. The only recourse for a person aggrieved by revocation is to seek judicial review, which is costly and slow. Furthermore, while the Minister’s decision is expressed as final, that does not bar judicial review; but it does mean the internal appeal route is exhausted.

Fifth, the regulations impose a dual approval requirement with no prioritisation. An applicant must first obtain local government approval before the Commissioner can approve. If the local government takes many months to decide, the applicant may be left waiting. If the local government refuses, the Commissioner cannot approve and there is no appeal mechanism within these regulations against the local government’s refusal. The applicant must appeal the local government’s decision under the relevant planning legislation, adding further complexity.

Sixth, the regulations apply to signs inside buildings if they are artificially lit and directed primarily at vehicle occupants (regulation 4(2)). This catches signs in shop windows that are lit and visible from the road, even if the shop is inside a building. Retail tenants may not realise they need both local government approval and Commissioner approval for an illuminated window sign.

Seventh, the Commissioner’s power to dispose of removed items in any manner the Commissioner thinks fit means that even valuable signs may be destroyed without compensation. The only protection is the requirement to apply proceeds of sale first to costs and penalties; the owner receives only the balance if any. There is no right to retrieve the sign before disposal, only the right to claim the balance of proceeds after sale.

Compliance begins with determining whether the proposed sign falls within any exemption under regulation 4. Carefully measure the sign area using the notional rectangle method. For a real estate sign, ensure it does not exceed 1.0 m² and only indicates that premises are for sale or for letting. For a business identification sign, measure only the portion visible from any one direction. If the sign is inside a building, check whether it is artificially lit and directed at vehicle occupants; if so, it is not exempt. If it is outside and exceeds the regulatory thresholds, a full approval is required.

The first step is to obtain local government approval. The local government will assess the sign against its local planning scheme, local law, or policy. It may impose conditions regarding size, placement, lighting, and duration. The applicant should obtain written evidence of the local government’s approval and any conditions imposed. Without this, the Commissioner cannot grant approval. The applicant should also confirm that the local government’s conditions are consistent with what the Commissioner might later impose. If there is a conflict, the Commissioner will refuse.

The second step is to apply to the Commissioner of Main Roads. Use the form approved by the Commissioner (the regulations do not prescribe the form; it can be requested from any Main Roads office). Lodge the application at any office of the Commissioner. Provide the local government approval documentation and any other information the Commissioner requests. The Commissioner may request information about the sign’s structural integrity, location, lighting, and potential traffic impact. Be prepared to provide engineering drawings or traffic safety reports if requested.

The Commissioner will consider the application and may grant approval with conditions and a fixed duration. The approval may be for a term as short as one year. If the applicant is dissatisfied with the conditions or the duration, an appeal may be lodged with the Minister within 28 days. The appeal must be in writing. The Minister may appoint a committee to investigate, and the decision is final. There is no provision for an extension of time, so the 28-day deadline must be strictly observed.

Once approval is granted, comply with all conditions scrupulously. Regularly inspect the sign to ensure it remains safe and aesthetically acceptable. If the sign becomes damaged, faded, or otherwise objectionable, repair it promptly to avoid the Commissioner forming an adverse opinion. Keep records of the approval, conditions, and any maintenance actions. If the approval is about to expire, apply for a new approval well before the expiry date. There is no automatic renewal; the applicant must restart the process.

If the Commissioner issues a direction to remove or transfer a sign, act within the specified period. Do not ignore the direction. Comply voluntarily to avoid the Commissioner entering the property and recovering the much higher cost of forced removal. If the direction appears unreasonable, seek legal advice quickly, but do not delay compliance pending advice; the time for compliance will likely be short. If the Commissioner revokes an approval, the notice of intention provides a seven-day window to respond. Use that window to provide reasons or take corrective action. Even if the revocation proceeds, the person may challenge it in court, but that is a separate step.

Finally, for signs that existed before 2 February 1973, note that they are not immune. The Commissioner can direct removal if they become hazardous or aesthetically objectionable. Owners of such old signs should consider proactively removing or upgrading them to reduce the risk of direction and cost recovery.