KT Corporation Pty Ltd v Logan City Council and State of Queensland
[2005] QPEC 119
•16 December 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
KT Corporation Pty Ltd v. Logan City Council & State of Queensland [2005] QPEC 119
PARTIES:
KT CORPORATION PTY LTD
Appellant
v
LOGAN CITY COUNCILRespondent
and
STATE OF QUEENSLAND
Co-respondent
FILE NO/S:
Appeal No 571 of 2003
DIVISION:
Planning & Environment
PROCEEDING:
Application
ORIGINATING COURT:
DELIVERED ON:
16 December 2005
DELIVERED AT:
Brisbane
HEARING DATE:
9 December 2005
JUDGE:
Skoien SJDC
ORDER:
Finding of reasonable likelihood of traffic hazard
CATCHWORDS:
Meaning of “reasonable likelihood”
COUNSEL: Mr T Trotter, with him Mr S Keliher for appellant
Mr J Houston for respondent
Mr M Williamson for co-respondentSOLICITORS:
BCI Law for appellant
Corrs Chambers Westgarth for respondent
Crown Law for the co-respondent
The parties to this appeal are before me on an application to try a preliminary point of fact the conclusion of which may bring the appeal to an end one way or another.
The unusual history which led to this appeal is comprehensively set out in the judgment of Wilson DCJ, reported in [2005] QPELR 28. I will not repeat it fully but merely summarise some highlights:
(a) 29/5/95 - The Council gave approval, under s.4.13 of the Local Government (Planning and Environment) Act 1990 for an existing advertising billboard on land beside the Pacific Motorway to be raised to an overall height of 12m;
(b) The position of the billboard is off the motorway reserve and about 90m. to the south of the merge point of the Shailer Park on-ramp to the motorway;
(c) Sometime between then and 2002 (probably in about 1996) the Department of Main Roads (“DMR”) built sound barriers along the motorway which obscured much of the billboard. Accordingly it was raised, without permission, to a maximum height of about 15m. Then in October 2001 the billboard (but not the footings) was removed.
(d) 5/12/02 – KT applied to the Council for a change of a condition of the 1995 permit to raise the maximum height of the billboard to an overall height of 14.5m to make it visible from the motorway;
(e) 9/1/03 – DMR (then considered by all concerned to be a concurrence agency) directed refusal of the application, which the Council did on 20/2/03;
(f) 24/2/03 – This appeal was lodged;
(g) 13/7/04 – Wilson DCJ ruled that DMR was not a concurrence agency and that the 1995 permit had not lapsed;
(h) 15/6/05 – The Council resolved to approve the application subject to first obtaining the approval of the chief executive of the DMR.
The Council’s resolution that its approval of KT’s application to raise the height of the billboard should be subject to the approval of the chief executive was based upon its understanding of the effect of s.43(1) of the Transport Infrastructure Act 1994 (“TIA”), which is:
“Distraction of traffic on motorways
43(1) A local government must obtain the chief executive’s written approval if it intends to approve the erection, alteration or operation of an advertising sign or other advertising device that would be-
(a) visible from a motorway; and
(b) beyond the boundaries of the motorway; and
(c) reasonably likely to create a traffic hazard for the motorway.”As is clear from s 43(1), the duty of the Council to obtain the approval of the chief executive of the DMR depends on all three of the criteria identified in paragraphs (a), (b) and (c) being satisfied. There is no doubt here that paragraphs (a) and (b) are each satisfied; the question is whether paragraph (c) is satisfied. Paragraph (c) raises a discrete question of fact which, an appeal being afoot, falls to this Court to decide. The parties are content to have me do this on the affidavits which have been filed and have not required any of the deponents for cross-examination.
Section 43(2) of the TIA is:-
“(2) The chief executive may make guidelines to which local governments must have regard in deciding whether an approval of the chief executive under subsection (1) is required for particular motorways.”
Such Guidelines have been produced which are said to be aimed at achieving:
“Advertising (within and visible from State controlled roads) that is acceptable to the DMR in meeting its road safety and traffic operation objectives.”
Appendix C to the Guidelines contains a number of figures which provide guidance for the placement of advertising billboards. Reference to the relevant figure shows that the subject billboard site is well within the “Device Restriction Area” for downstream traffic after a merge. That is the area in which, the Guidelines warn, the presence of a sign can lead to driver distraction. The length of the area is designed to be sufficient to allow “for traffic to stabilise following the merge”. In the instant case, the length of the area is 250m. and as I have said this particular billboard site is only some 90m. downstream of the merge point.
KT seeks to meet this problem by arguing that the prima facie prohibition is displaced in this instance because of the presence and effect of the sound barrier fence which effectively screens the billboard, even at its proposed height, from southbound drivers over the distance at which distraction might occur.
It is necessary to decide what is intended to be understood by the expression “reasonably likely to create a traffic hazard” in paragraph (c) of s 43 of TIA. The term “traffic hazard” poses no difficulty. A “hazard” in this context is a danger or risk and a “traffic hazard” is a danger or risk to traffic. This accords with the definition in Part 2 of the Guidelines.
Mr Trotter of counsel, who led for KT, argued that as KT presently has the right to erect a billboard to a height of 12m, it is only the effect of the increased height of 2.5m for which KT applied to the Council which is material. That seems to me to be true, but I do not think it leads me anywhere for the purposes of this application. The evidence is clear that at the presently permitted height of 12m, the billboard would be fully visible to motorists for a considerable distance as they drive south but would at some stage, and progressively, be shielded from view by the sound barrier. The same thing would apply for a 14.5m high billboard, but the interference to view would be delayed by virtue of the extra height. The suggestion is that a motorist may be intrigued by and therefore distracted by the hidden portion of the billboard, so that the increased visibility of the higher billboard would be likely actually to reduce the possibility of that distraction. But the evidence of the experts is not directed to the question whether that reduction in the obscuring of the 14.5m high billboard occurs over any critical distance. I should not try to adopt an expertise I do not possess so I will not speculate on this point.
Mr Williamson, counsel for the State, raised the question of the subject matter to be advertised on the proposed billboard. He made the point that it could be more or less distracting, according to what is displayed. That is undoubtedly true but I do not think I should proceed on the assumption that it could be extremely distracting. I note that the Chief Executive of Queensland Transport and the Commissioner of Police are both given power to remove or modify a sign in, on or near a road, which may create a danger to traffic (Transport Operations (Road Use Management) Regulation 1995 s 62 AA). It seems to me that a particularly provocative or attention-seizing sign could fall to be dealt with under that section. Furthermore, there is a Code of Ethics laid down by the Australian Association of National Advertisers for self regulation of advertisers which also sets up a complaints system.
To return to the central question, “What is meant by reasonably likely to create a traffic hazard”?
The word “likely” has been variously interpreted. A useful start is the definitions in the dictionaries. The Shorter Oxford English Dictionary gives, relevantly, “probable”, as does the excellent Encarta Dictionary. The High Court, in R v Boughey (1986) A. Crim. R 156, discussed the meaning of the word. Gibbs CJ and Brennan J were most influenced by the fact that the word was used in a statute to define murder (an act “likely to cause death”) and the seriousness of that offence led them to the view that probability was meant. Mason, Wilson and Deane JJ came to the same conclusion but in discussing the word said that its ordinary meaning was a “substantial chance, a real, not remote chance, regardless of whether it is more or less than 50 per cent”. That was also what Gibbs CJ, Mason, Wilson and Dawson JJ held in Waugh v Kippen (1986) 64 ALR 195, where the phrase was “likely to cause risk of injury”. I propose to apply that.
Does the adverb “reasonably” alter that? This word is, like “likely”, a word which is frequently used, generally understood, but difficult to define. The adjective “reasonable”, from which it derives, can mean one of two quite different things. It can mean moderately small, as in “I thought it was a reasonable risk”; “It was a reasonable price to pay” etc. It can mean moderately large as in “I gave him a reasonable blow”; “He amassed a reasonable fortune” etc. And of course it can mean “based upon the use of reason”: As to “reasonably”, the SOED gives merely “in a reasonable manner; sufficiently, fairly”. In the present context, I consider it carries the meaning so often attached to it by lawyers “looked at objectively by the reasonable person.” So the likelihood has to be judged in that way.
Boughey and other cases emphasise that the context of words such as these is all-important. In speaking of traffic safety the Parliament could not have intended that “reasonably likely”, when referring to the creation of a traffic hazard, is to mean “remotely possible” or anything like that. Given the inherently hazardous nature of motoring, virtually every road design or associated feature, when exposed to moving vehicles operated by human beings exhibiting the broad spectrum of human frailties, would be likely to create a traffic hazard. If so interpreted the chief executive would be inundated with referrals from prudent local governments. At the other extreme, “reasonably likely” cannot have been intended to mean “very probable”, or even just “probable”. The legislature cannot have intended to allow local governments to permit the installation of billboards which would probably create a traffic hazard.
In my view the local government, and on an appeal this Court, is required to refer the application to the chief executive where the proposed billboard, viewed objectively, would create a real, not remote, risk to the reasonably observant and careful driver. Such a risk need not equal, or even approach a 50 per cent chance, but it must be more than a speculative risk.
I do not think it is possible to define that criterion more accurately. It will sometimes be difficult to identify whether a particular possible hazard reaches the referral point, but the task should not be impossible. Courts regularly decide such questions.
Affidavits are before me from recognised and very experienced expert traffic engineers, one by Mr Holland for KT and two by Mr Brameld for the Council.
Mr Holland’s opinion is that the billboard, when re-erected to 14.5m, will not be reasonably likely to create a traffic hazard for the motorway. Mr Brameld’s view is to the contrary.
Mr Holland’s approach, having recorded that all road travel has some risk attached to it (on to which I have stated my agreement) was first, to say that if the existing legally permitted position of the 12m billboard creates a hazard, then the raising of the billboard would have either no adverse effect or could possibly have an ameliorating effect because it would be less shielded than the lower billboard. For the reasons I have stated, I am not persuaded by the suggestion that the effect could be an amelioration, unsupported as it is by any careful comparison of the two situations. Finally, Mr Holland relies on his observations of greater hazards created by signs erected elsewhere on motorways by DMR itself and this seems to be the basis of his opinion that there will be no adverse effects. I am not persuaded that the effect of the subject billboard will not be adverse because more adverse effects are created by other signs.
Photographs and factual statements in an affidavit by Mr Parr (of a company which is commercially concerned in this appeal) are said to support Mr Holland but the distances from which Mr Parr took the photographs are challenged, persuasively, by Mr Brameld and the challenge was not responded to by Mr Parr. In those circumstances I accept that the correct distances are as shown by Mr Brameld in the aerial photograph exhibited to his affidavit, filed on 5 December 2004. Indeed, the photographs numbered 3 and 4, exhibited to the affidavit of Mr Elliott (filed in support of KT) seem to support Mr Brameld’s challenge when looked at carefully.
Finally, two affidavits of a surveyor, Mr Love, were relied on by KT. Each exhibits a scale plan. The first, filed 16 March 2005, illustrates the portions of the Shailer Park on-ramp and of the Pacific Motorway, from which a driver of a car would not be able o see the raised billboard. The second, filed 7 December 2005, carries out the same exercise for the driver of a truck. It can be seen that a car driver on the on-ramp could not see the billboard at any material point. A truck driver would have a view of it for some of the distance. But Mr Brameld’s concern is not related to the effect of the sign on on-ramp traffic.
Mr Brameld’s concern is related to the southbound traffic on the motorway. He has superimposed, on an aerial photograph, a zone of the motorway which begins 400m from the billboard and ends 200m from the billboard. He bases this plot on Mr Love’s measurements. He calls the zone the “critical location for upstream instability”. In the accompanying text he records that much of this zone coincides with what Mr Parr describes as the optimum viewing distance for the billboard. And whereas the 12m billboard loses its visibility in the early part of the zone, the photographic evidence shows that the raised billboard is fully visible for well over 100m of the zone and even as it sinks gradually out of the view of the southbound motorist could well still attract the motorist’s attention.
In his report exhibited to his earlier affidavit, Mr Brameld explains why the zone is critical. During peak periods (which he has observed) traffic at the merge of the Shailer Park on-ramp is at or near peak capacity. This effect commonly causes the motorway traffic to slow, perhaps markedly, creating an unstable situation which demands the full attention of the southbound driver. Any distraction can reduce the ability of that driver to give the necessary full attention to the task of safe driving and there is then an obvious risk of a collision occurring. In that situation I can well imagine rear end collisions as well as collisions between cars travelling parallel when one of them swerves.
I am persuaded by Mr Brameld’s opinion to find that the raised sign would, on the balance of probabilities, be reasonably likely to create a traffic hazard for the motorway and therefore, under s 43(1) of the TIA, require referral to the chief executive.
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