Land and Environment Court of New South Wales CITATION : Octopus Media Pty Ltd v Canada Bay City Council [2006] NSWLEC 580 APPLICANT Octopus Media Pty Ltd PARTIES : RESPONDENT Canada Bay City Council FILE NUMBER(S) : 11477 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Electronic graphic advertising sign, character and streetscape, road safety Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No. 64 Advertising and Signage LEGISLATION CITED: Concord Planning Scheme Ordinance Concord Local Environmental Plan No. 103 - Heritage Strathfield Triangle Precinct Development Control Plan 2002 Draft Concord Development Control Plan No. 36 - Advertising and Signs DATES OF HEARING: 13-14/07/2006 and 24/07/2006 DATE OF JUDGMENT: 09/22/2006 APPLICANT Mr A Galasso, barrister Instructed by: Mr J Hannaford, solicitor Of: Hannaford Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, solicitor, SOLICITORS Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 22 September 2006 11477 of 2005 Octopus Media Pty Ltd v Canada Bay City Council JUDGMENT Introduction 1 This appeal relates to a development application for the replacement of an existing rooftop advertising sign with an electronic graphic display sign in the same location. The sign is to be positioned on top of the two-storey part of an existing building situated on the southwest corner of Parramatta Road and Leicester Avenue, Strathfield. This building is presently used as a car repair workshop and are other signs on the building in addition to a number of telecommunication antennas on the roof. 2 The sign's screen is to have dimensions of 6.08 m by 3.10 m. More particularly it will have an electronic light emitting diode screen that will show images that will change approximately every 10–15 seconds. The sign will have the capacity to present a variety of fixed and animated illuminated images. Typically, the message displayed on the sign will build for approximately 10 seconds with the completed message and being displayed for another 5 seconds. Light output will be reduced between dusk and dawn. It will be able to be seen from a number of surrounding roads including Parramatta Road and Leicester Avenue and Concord Road. 3 The surrounding area is characterised by a mix of commercial and residential development and major vehicular traffic arteries. The intersections between Parramatta Road (45,000 vehicles per day) and Leicester Avenue/Concord Road (12,000 vehicles per day) and Parramatta Road and the M4 Motorway are fully signalised for through and turning traffic and for pedestrians. Statutory provisions 4 The site is zoned 10(b) - Enterprise Area under the Concord Planning Scheme Ordinance. Comprising an advertising structure the proposal is permissible with development consent. 5 Being higher than 8 m above ground and having an area greater than 20 sq m and being within 250 m of, and visible from, a classified road the sign is subject to the requirements of cll 17 and 18 of State Environmental Planning Policy No. 64 Advertising and Signage ("SEPP 64"). An assessment of the impact of the proposal is thus required and in addition the concurrence of the Roads and Traffic Authority ("the RTA") must be obtained. The application must also be advertised in accordance with s 79A of the Environmental Planning and Assessment Act 1979. In deciding whether or not concurrence should be granted, consideration must be given to: possible impacts on traffic safety; the character and quality of the affected classified road and views of the sign; and any RTA guidelines. 6 Also applicable to the site are: o Strathfield Triangle Precinct Development Control Plan 2002 ("the Triangle DCP"). o Draft Concord Development Control Plan No. 36 - Advertising and Signs ("the Advertising DCP"). o Concord Local Environmental Plan No. 103 - Heritage ("the Heritage LEP") o Roads and Traffic Authority's Draft Policy Control of Advertising Signs ("the RTA's advertising policy"). Advertising and council's decision 7 The application was advertised and there were no public submissions. It was also notified to the RTA who advised that pursuant to cll 17 and 18 of SEPP 64 it did not concur in the granting of development consent because the proposed advertising sign would be prejudicial to road safety. This is contrary to its policy (guidelines) for the Control of Advertising Signs ("the guidelines"), which does not permit signs where there are high demands on a driver's concentration on the road conditions. 8 The council refused the application on 5 January 2006 for reasons relating to: non-compliance with the RTA's policy; prejudice to road safety; character, streetscape and heritage; and contrary to council's planning controls. The issues 9 The amended Statement of Issues identifies the following issues: o Development consent cannot be granted absent the concurrence of the RTA. o The proposal does not meet the assessment criteria in Sch 1 of SEPP 64 in relation to: the character of the area (including the requirements of the Triangle DCP); streetscape; site and building; and safety. o The site is unsuitable for the proposed development due to its proximity to a busy intersection, giving rise to a significant traffic hazard. 10 The issue of the concurrence of the RTA was not pursued given the power of the Court under s 39(6) of the Land and Environment Court Act 1979 to determine the application in the absence of such concurrence. The evidence 11 On behalf of the respondent council, expert evidence was given by: o Dr S Job a psychologist and road safety expert employed by the RTA as its General Manager, Road Safety Strategy. o Dr J Hatfield a psychologist and road safety expert and Senior Research Fellow, NSW Injury Risk Management Research Centre. 12 On behalf of the applicant, expert evidence was given by: o Mr S Hunt a consulting traffic engineer. o Mr J Smith a consulting engineer with particular experience in relation to luminance. 13 Additional evidence was given by the Court-appointed expert: o Mr N. Dixon an architect and urban design consultant. Character and streetscape 14 In relation to the issues of character and streetscape Mr Dickson considered the provisions of the Triangle DCP and SEPP 64. He acknowledged that this section of Parramatta Road does not contain many signs that protrude above the roofline of buildings, as does the proposal but taking into account that this is for a replacement sign, albeit having a different form, impacts associated with a new sign do not result. He observed that the roof area of the building accommodates a number of telecommunication antennas and this contributes to the building's visual unpleasantness. Again the proposal will not further complicate or have additional significant impact on the streetscape. 15 He recognised that the proposed sign is not responsive to the facade composition and articulation of the building in that it is not an integrated component thereof. Despite this he was of the opinion that the site is likely to be redeveloped in the near future, taking into account the extent of redevelopment in the precinct and the applicable planning controls. When this occurs amalgamated advertising structures can be anticipated. He also noted that under the Triangle DCP an eight-storey development would be permissible and that such a development on the site would have impacts greater than the proposed replacement advertising structure. 16 He also commented that whilst the site is located adjacent to a heritage item this does not raise any matter of concern given that the sign will not have a more detrimental impact on the item than does the existing sign. 17 Mr Dickson concluded that the replacement of the existing sign is not considered unreasonable, notwithstanding that it would not be permitted under the Triangle DCP. He considers that it would not result in any adverse impacts on the character of the streetscapes. On the basis that a new sign in the presently proposed form would otherwise be unacceptable he recommended that should a consent be granted it be limited to a period of five years. Court's conclusion – character and streetscape 18 Whilst I largely agree with Mr Dickson for the reasons that he has given, I do not accept that simply because the sign exists that a replacement sign could not, in an urban design context, be more responsive in terms of its positioning and relationship to the existing building. This is especially so given the requirements of SEPP 64 involving matters such as: protrusion above buildings and dominance of the skyline; and rationalisation and simplification. However given my decision to refuse the application this is a matter for another day. Road safety 19 Clause 8 of SEPP 64 provides that consent must not be granted unless the consent authority is satisfied, inter alia, that the criteria in Sch 1 thereof are satisfied. These criteria relevantly involve the need to ensure the safety of pedestrians, bicyclists and public roads. 20 Having considered the proposed sign in detail Dr Job had grave concerns regarding the impact that it will have on road safety. These concerns relate to the brightness of the sign and its capability to electronically display animation and variable messages. It's brightness and the ability to change will present a significant distraction to motorists that may be associated with increased motor vehicle crashes particularly being situated on the corner of a busy complex intersection. In support of these conclusions he makes reference to a literature review undertaken by Dr Hatfield that found that some features of advertising signs such as novelty, bright lights or changing displays are likely to distract drivers and that such distraction can impair driving. He (as did Dr Hatfield) also took into account research by the Wisconsin Department of Transportation (1994) in relation to large signs displaying variable messages including scores, advertisements and moving images. These particular signs were associated with a significant increase in crashes and a similar outcome can be anticipated as a consequence of the proposed sign. He concluded that because the proposed sign combines a number of undesirable characteristics which will lead to an increase in distraction for motorists, an increase in road crashes will result. He also noted that the RTA's advertising guidelines would prohibit the proposed sign because of its high luminance and proximity to an intersection controlled by traffic control signals. 21 Based on a number of studies, Dr Hatfield was also of the opinion that the sign is likely to affect road safety adversely due to driver distraction. The factors identified and examined in these studies that make it particularly likely to attract drivers' attention include: novelty and unexpectedness; movement and brightness (although she conceded that it was not clear that the sign would have excessive illumination); external contrast; and prominent position. Of particular importance is the conclusion that stimuli with abrupt onsets and luminescence attract attention involuntarily. Also, changing content could hold a driver's attention because of general interest for the need to see the whole message or see it twice to process its contents. These factors together with the existing substantial visual clutter and the complexity of the relevant road environment in the vicinity of the sign could result in a distracted driver not responding in a timely fashion to traffic signals, the need to change lanes or check for pedestrians or cyclists. Similarly pedestrians and cyclists might also be distracted and put at risk. In this context she pointed out that these features are associated with automatic distraction they being not under a road-user's conscious control. She also referred to the above-mentioned 1994 Wisconsin study, which in her opinion demonstrates a likelihood of an increased crash rate for vehicles. Taking these matters into account together with the fact that this is a busy intersection utilised by a large number of road users, including pedestrians and cyclists, the distractions caused by the sign are likely to result in road-user error, which indicates serious safety concerns. 22 Mr Hunt supported the proposed sign saying that it would have no significant impact on traffic in Parramatta Road, Concord Road or any other traffic in the vicinity and would not result in any unacceptable safety implications for motorists or pedestrians. In reaching this conclusion he considered three similar existing electronic signs in Melbourne including one at the St Kilda Junction that I was able to inspect (with the agreement of the parties) prior to the completion of the proceedings. 23 He explained that the St. Kilda Junction sign had been approved by the Victorian Consumer Administrative Tribunal ("the Tribunal") taking into account that this is a busy intersection in terms of vehicles, trams and bicycles and to a lesser extent pedestrians. In making its decision the Tribunal noted that elements of distraction in terms of advertising, and in this case a sign that utilises recent technology, is not something that is unexpected or unusual. It also noted that there was no conclusive evidence that advertising signs on roads have an impact on traffic safety. He also referred to a sign similar to the proposed sign at the intersection of Princes Highway and Rocky Point Road at Kogarah that operated for three or four years and pointed to the absence of any link between the sign and the two reported accidents that occurred close by. In addition he noted the utilisation by the RTA of electronic changeable message signs within the metropolitan area, which signs can provide a continuously changing message. 24 Mr Hunt also took into account Australian Road Research Board papers entitled What Attracts Attention When Driving (1985) and Investigation of Distraction by Irrelevant Information (1976) that reached similar conclusions to the effect that whilst advertising attracts attention this can be accommodated by a driver's spare capacity for observation. Moreover drivers have the ability to shed irrelevant information and the general effect of advertising signs is not great. These conclusions are generally supported in the report entitled Traffic Accidents and Advertising Signs (1984) that reviewed Australian and overseas-published research, concluding that there is no definitive evidence that, in general, advertising signs are causing (traffic) accidents. He also referred to a paper entitled Roadside Advertising Signs - A Review of the Literature and Recommendations for Policy - A Contract Report for the RACV Ltd (2000) which examined over 600 Victoria Police accident files observing that very few instances were found of distraction due to any cause and none that implicated roadside advertising. 25 He also referred to a study prepared by the Accident Research Unit at the University of Nottingham entitled Attraction and Distraction of Attention with Roadside Advertisements (2006) that concluded that street level advertisements are a real hazard by comparison with raised level advertisements. Referenced in the study is an abstract from an United States study entitled Impact of Video Advertising on Driver Fixation Patterns (2004). This abstract considered eye fixation data collected from drivers passing video advertising signs and other traffic signs and concluded, inter alia, that video signs were less likely to be looked at than traffic signs. Reference was also made to another on-road study that indicates that video signs on a curve that is close to the line of sight and visible for an extensive period is particularly distracting. In his supplementary report he considered the various studies and literature on the nexus between road safety and electronic signs, concluding that at worst these are inconclusive. This is because electronic signs are typically installed on congested roadways and the cause of crashes is difficult to determine. 26 Mr Hunt concluded that the sign will be no more distracting than the plethora of other signs typically located along urban arterial roads because there is no evidence that the advertising in the vicinity of these intersections, which are not unduly complex, has resulted in safety implications. In this instance given the congested traffic conditions along Parramatta Road the sign will be frequently viewed from stationary or low speed moving vehicles, giving sufficient time to decipher the message. He also concluded that the proposed sign will have no significant impact on traffic in its vicinity and will not result in unacceptable safety implications for motorists all pedestrians. 27 In his report, Mr Smith explained the effect of various levels of luminescence during daylight and at night, suggesting an appropriate condition to the effect that the display should not be capable of being mistaken for traffic signals. Court's conclusions – road safety 28 Having considered the various studies referred to by the experts, I have reached the conclusion that they do not definitively establish that a sign of the kind here proposed would necessarily result in a reduction in road safety. They do however show that such signs can and do attract drivers' attention, probably more so than more conventional signs but there is no certainty that the extent to which this diversion of attention is sufficient to be dangerous. Similarly, considering Mr Hunt's analysis of available accident crash statistics before and after the installation of signs in Melbourne and Sydney, I have been unable to reach any meaningful conclusion as to whether or not these particular signs have had any adverse effect on road safety. Hence the proposed sign needs to be dealt with on its own merits and in its own particular context 29 As already noted the proposed sign is to replace the existing similar sized non-electronic sign and I am in no doubt that the new sign will, given its particular and different characteristics including animation and variability, be able to attract greater attention. The existing sign is and the proposed sign will be conspicuous for drivers travelling in a southerly direction along Leicester Avenue and in a westerly direction along Parramatta Road. 30 When viewing the proposed sign from the north it will be peripheral to the traffic lights at the intersection of Parramatta Road and Leicester Avenue appearing above and some distance to the right. I am not so concerned about the impact of the sign in these circumstances. However when viewed from the east the sign will variously appear in the context of these same traffic lights as well as the traffic lights at the intersection of Parramatta Road and the M4 Motorway and possibly other traffic lights further to the east. But unlike the view from the north it will appear amidst the traffic signals and directional signage and in a driver's direct line of sight (as revealed by Mr Hunt's Photographs 2 & 5) rather than being peripheral to this. The sign will also be apparent to pedestrians crossing the road and utilising footpaths generally in the vicinity of the intersection of these roads. 31 Plainly, given its position when viewed from Parramatta Road and given its particular characteristics it will affect the prominence and thus reduce the effectiveness of the traffic signals and directional signs at the intersections. I have reached this conclusion taking into account that whilst it will not be as bright as the traffic signals it will be much larger as well as being animated and variable. As a consequence I accept that a driver's attention could be taken away from (what Dr Hatfield described as) driving relevant stimuli, including the traffic signals and the traffic direction signs as well as other traffic. Whilst this is an elevated sign it would, when viewed from Parramatta Road, effectively appear to be close to street level (again I refer to Mr Hunt's Photograph 5) and as a consequence must be of greater concern because advertisements at street level are likely to have a greater visual effect. 32 This outcome needs to be considered in the light of my acceptance that this is a location, which, whilst not unique in metropolitan Sydney, contains intersections that require relatively high levels of concentration by drivers. 33 It is self evident that drivers have the ability to absorb a certain level of external stimuli without having their driving performance necessarily adversely affected, given the extent of such stimuli in roadside environments generally. This is a normal part of driving where individual driver concentration is required. It is also self evident that the majority of drivers continue to show their capability of disregarding the existing distractions at the intersections around the site of the sign, in favour of the traffic demands on their attention. 34 The extent to which drivers or indeed cyclists and pedestrians might be distracted depends upon the attractiveness of the external stimuli. Also, automatic or unintended responses are still possible and could occur at critical times. Taking into account the relatively unusual nature of this sign (novelty, movement and nature of illumination), I have been persuaded that driver response to it, intended or otherwise, will be increased by comparison with other existing signage. The question that thus arises in the road safety context is: will the extra demand for attention that will result from this proposed sign, be significant? Whilst I am not so sure about the grave concerns expressed by Dr Job, a conservative approach is nevertheless required. In these circumstances I am satisfied that this particular sign, in the location proposed is likely to have adverse traffic safety consequences notwithstanding that it is clearly not possible to quantify these. 35 As required by SEPP 64, it is in the public interest to ensure the safety of pedestrians, bicyclists and public roads. This must attract greater significance than the commercial interest of the applicant and the public's need to be informed about commercial goods and services. In this context, although electronic and variable signs are commonly used by councils and the RTA in roadside positions and even though these could distract as well as inform, they can be distinguished, having a public purpose, usually comprising matters of road safety or traffic management. 36 In the consideration of this application I have given the public interest significant and indeed determinative weight and the concerns that I have about the road safety implications associated with this sign are such as to warrant the refusal of the application. Even though it is possible that traffic safety may not be greatly affected, I have not been persuaded that the likelihood of this is such as to risk the granting of consent. The appeal must therefore be dismissed and the development application refused. Orders 37 The orders of the Court are therefore: 1. The appeal is dismissed 2. The development application for the replacement of an existing rooftop advertising sign with an electronic graphic display sign on top of the existing building at 4 - 8 Parramatta Road, Strathfield, is determined by the refusal of development consent. 3. The exhibits are returned. ___________________ T A Bly Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.