Malchada Pty Ltd v Gold Coast City Council

[2015] QPEC 21

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Malchada Pty Ltd v Gold Coast City Council [2015] QPEC 21
PARTIES:	MALCHADA PTY LTD (Appellant) v GOLD COAST CITY COUNCIL (Respondent)
FILE NO:	2940 of 2013
DIVISION:	Planning & Environment Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	Judgment delivered ex tempore 8 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	10-11 March 2015, 6- 8 May 2015
JUDGE:	Everson DCJ
ORDER:	Appeal allowed
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – where the proposed development is an electronic billboard – where the respondent refused the appellant’s development application – whether the proposed development conflicts with a number of provisions of the Local Business Domain Placement Code and the Advertising Devices Code of the Planning Scheme of the respondent.
COUNSEL:	S Ure for the appellant K Wylie for the respondent
SOLICITORS:	Thomson Geer for the appellant MBA Lawyers for the respondent

1. This is an appeal against the refusal by the respondent on 17 July 2013 of a development application for Operation Works (Advertising Device) (“the development application”) and the refusal on the same date of an accompanying application to license an advertising device (“the license application”). The parties are in agreement that the appeal in respect of the license application need not be considered by the court and that, should the court allow the appeal in respect of the development application, on the basis that there is no conflict with the Gold Coast Planning Scheme 2003 (“the Planning Scheme”), the appeal in respect of the license application should also be allowed.

1. The land the subject of the appeal is described as Lot 28 on RP 135949 and is situated at 2 Coogeen Street, Bundall (“the site”).  It is currently used as the car park for an adjoining medical centre. It has significant frontage to Bundall Road, of 27.05 metres, together with a frontage to the corner truncation of Bundall Road and Coogeen Street of 7.4 metres and a frontage to Coogeen Street of 10.7 metres. It is located in the Local Business Domain in the Planning Scheme.

1. The proposed development is an electronic billboard with two faces, each 6 metres x 3 metres, totalling 18 square metres. One generally faces north, the other south on an angle of 12.5 degrees.  It is situated approximately midway along the Bundall Road frontage of the site and located entirely within it. The billboard is supported by a 12.09 metre x 1.4 metre rectangular column and the maximum height of the billboard atop the podium will be 8.25 metres. It, therefore, addresses Bundall Road as an elevated structure with two rectangular faces in the shape of a capital V, with the narrow part adjacent to the road frontage. Each of the faces is proposed to be an illuminated LED screen capable of changing the advertisement shown at predetermined intervals.  It will not flash or display any moving images. 

1. Bundall Road is one of the principle arterial roads on the Gold Coast.  It forms part of a traffic corridor running from Smith Street in the north to the Pacific Motorway in the south. It carries a significant volume of traffic. Adjacent to where the electronic billboard is intended to be located, there are four north-bound lanes and three south-bound lanes.  The site is on the western side of Bundall Road in a block bounded by the minor intersection with Coogeen Street to the north and Allawah Street, which provides access to the adjacent medical centre, to the south. The block fronting Bundall Road to the south of Allawah Street is occupied by a shopping centre. At its southern extremity is a significant signalised intersection where Boomerang Crescent meets Bundall Road.  The block on the western side of Bundall Road to the north of Coogeen Street is entirely occupied by a commercial complex containing a restaurant and to the north of this is a major signalised intersection where Ashmore Road meets Bundall Road.  At this point, five lanes of traffic intersect with the traffic on Bundall Road and sweep to the east, intersecting with Salerno Street just to the south.

1. Just south of where the electronic billboard is proposed to be located, there is a large gantry sign covering the entire width of the four north-bound lanes of Bundall Road. A similar sign is located just north of Salerno Street, facing the south-bound traffic. For the length of Bundall Road north of Boomerang Crescent, for several blocks, there are numerous signs facing both directions, advertising a variety of things, including commercial businesses which proliferate in this stretch of the road.  There is only one electronic billboard however, and this is owned by the respondent and it is located within open space on the eastern side of Bundall Road a considerable distance from the site.

1. While there are significant commercial activities occurring along Bundall Road, there are also areas of residential development.  Most of these are to the east, however to the west and south of the site there are significant areas, some of which are located on canals, where people reside.  In the immediate vicinity of the site, there are houses directly to the west and south of it and the entire block to the east consists of residential development backing onto a canal.  These residents enjoy a much better amenity from their eastern aspect and Bundall Road is generally screened by high fences and vegetation.  Not only is Bundall Road heavily trafficked at this location, it is also well-lit at night.

1. The respondent asserts that the proposed development conflicts with a number of provisions of the Local Business Domain Placement Code and the Advertising Devices Code of the Planning Scheme. As it is code assessable development, it is important to bear in mind how these provisions are to be applied.  Relevantly, the Planning Scheme states in Part 7 Division 1, Chapter 2, para 4.0:

“Development proposals must comply with the Performance Criteria to meet the objectives of the Planning Scheme and to ensure that the DEOs are not compromised.  All Performance Criteria are considered separate and distinct.

...

It is desirable that code assessable development comply with the Acceptable Solutions to ensure that each Performance Criterion is met.  However, code assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant Performance Criterion, to Council’s satisfaction.  Where no acceptable solution is provided for a Performance Criterion in the code, the development must provide its own solution to meet that particular Performance Criterion.”

1. The issues relevant to these alleged conflicts broadly relate to traffic safety and amenity. 

1. So far as traffic safety is concerned, evidence was given by two experienced traffic engineers, Mr Bitzios who was called by the appellant and Mr Beard who was called by the respondent. There is no mandatory safety standard for the proposed development.  Mr Beard was concerned that the intersection between Bundall Road and Ashmore Road was unsafe and noted that the proposed development did not comply with the Roadside Advertising Guide prepared by the Department of Transport and Main Roads, in that there was less than the desirable separation between the proposed electronic billboard and the intersection.  In terms of the intersection, I note that Mr Beard estimates that there is only one accident for about every two million vehicles which pass through it and that it was performing “pretty safely”.[1] A detailed analysis of the intersection failed to convince me that it was dangerous. In terms of the electronic billboard, Mr Bitzios undertook a detailed analysis of research into the effects of such devices, noting at para 8 of his report that: “Many before and after studies have shown that where electronic billboards have been installed that there has been no increase in the crash rate at that location.”[2] His findings in this regard are supported by an analysis of contributing factors to fatal accidents in Queensland between 2008 and 2011,[3] which shows driver distraction to be responsible for very few fatal traffic accidents and, in some years, none at all.

   [1] T 3.99 ll 10-20

   [2] Exhibit 6

   [3] Exhibit 20 table 5.1

1. On the evidence before me, I am satisfied that the proposed development is safe from a traffic perspective.

1. In terms of amenity, I was particularly assisted by the evidence of Mr Curtis, who analysed the proposed development from a visual amenity perspective and the evidence of Ms Adams, an engineer, who analysed the potential for adverse amenity impacts as a consequence of the light that will be omitted from the electronic billboard in the event it is approved. I accept the evidence of Mr Curtis that the local area for the purposes of analysis of conflicts with the Planning Scheme, given this is a roadside development in the context of other similar features, is the area between the Nerang River and Slayter Avenue. I accept his analysis that the visual context of it is characterised by the following key attributes: 

·     “The width of the road corridor, its associated infrastructure including signage, barriers and centre medians, and the significant volume of traffic the road carries.

·     The commercial development along its western edge that has comprised simple, robust orthogonal building forms, with extensive signage and is often set back behind car parking.  This results in a visually discordant streetscape that exhibits a low standard of visual amenity. 

·     The mixed-use but generally residential appearance and scale of development along the eastern edge that includes significant landscaping and is far more visually cohesive and consequently exhibits a higher standard of visual amenity. 

·     The striking contrast in appearance between the eastern and western sides of Bundall Road.”[4]

[4] Exhibit 13, para 94

1. I accept his conclusion in respect of the visual implications of the billboard and the base upon which it sits:

“The proposal is a relatively simple structure constructed from painted concrete block-work and steel. The structure has an understated, contemporary appearance that reflects its structural geometry and construction. The proposal’s relationship to the existing visual context is summarised as follows:

·      The simple geometric form is consistent with the orthogonal geometry of the existing developments that dominate the streetscape on the western side of Bundall Road.  Within this context the geometrical form is complementary and not unattractive. 

·     The pale grey colour will assist the structure to merge into the streetscape, and it will not be a visually dominant element.

·     The neutral colour and understated form of the structure will not exacerbate the existing discordant visual character of the streetscape.

·     The appearance of the structure is comparable to other existing commercial signage elements along Bundall Road.

·     The actual content and brightness of the electronic displays will be the most visually dominant elements of the proposal. The nature and size of the signs are, however, comparable to others already existing along the same traffic corridor.

·     The location, form and colour of the structure and the signage are clearly different from the traffic and directional signage that are far more visually prominent and are dominant features of the streetscape.  The existing urban outcome for the site and the Local Area may be improved on by the construction of a vertical pelmet on the site.”[5]

[5] Exhibit 13, para 96

1. I accept the evidence of Ms Adams that with appropriate conditioning, the proposed electronic billboard will not cause any light nuisance to adjoining residents, or more generally.

1. Turning to the discrete provisions of the relevant Codes in the Planning Scheme in respect of which conflict is alleged, I will not refer to acceptable solutions in the event I am otherwise satisfied that the relevant performance criterion has been complied with. 

1. The first alleged conflicts are with the Local Business Domain Place Code.  It is alleged that there is conflict with PC14 which states:

“All signage should be complementary to the design and style of the buildings on the site on which it is located and to signs and development on adjoining sites. All advertising devices must be designed and constructed to complement the local character of the area.” 

1. As noted above, the site contains no buildings and is currently used as a car park.  In my view, the signage complements the limited signage on the adjoining site of the medical centre and small signage which appears on the fence at the edge of the site adjacent to Bundall Road. The signs are geometrically similar to the sign the subject of this application, but much smaller.  For the reasons quoted from the evidence of Mr Curtis, I am satisfied that the electronic billboard will be designed and constructed to complement the local character of the area including the adjoining medical centre. 

1. The other performance criterion of this Code in respect of which conflict is alleged is PC18, which relevantly states:

“The proposed use must not detract from the amenity of the local area, having regard, but not limited, to the impact of:

…

(b) hours of operation;

…

(d) lighting;

…

(f) visual amenity;

…”

1. I am satisfied that the operation of the proposed electronic billboard on a 24 hour basis, with appropriate conditions as recommended by Ms Adams to limit light nuisance, will not detract from the amenity of the local area, as specified previously from the perspective of hours of operation, lighting or visual amenity. To the extent that it is alleged that the structure itself rather than the light emitted may detract from the amenity of the local area from a visual amenity perspective, I reject this contention for the reasons set out in the evidence of Mr Curtis quoted above. 

1. A number of conflicts with the Advertising Devices Code are also alleged by the respondent.  Firstly, it is alleged that the proposed development conflicts with the purpose of the Code.  The relevant parts of the purpose of the Code with which there is alleged conflict are as follows:

“The purpose of this Code is to ensure that the provision of Advertising Devices (or signs), within the city, allows for the functional advertising requirements of business to be catered for, while ensuring that the built form and the natural attributes of the city are not compromised.  The aesthetic appeal of the city should also be maintained. 

This Code seeks to ensure that Advertising Devices are treated as an essential component of commercial development and that they are properly considered at the design stage of any project. As a city that derives a significant part of its income from tourism, there is an especially strong need to ensure that all signage is well presented, aesthetically pleasing and complementary to the character and built form of the city.

The following development outcomes are promoted by this Code:

…

(b) Signage that complements and integrates with the design of the buildings on which it is located and is consistent with the type of development in the vicinity;

(c) Signage that complements the local streetscape of this locality and presents a visually attractive appearance to public areas.

…

(g) Signage that does not detract from the operation and safety of the major arterial road routes in the city.”  

1. In respect of the alleged conflicts with the purpose of this Code, I note the evidence of Mr Curtis which was quoted above, which I accept.  In my view, the proposed electronic billboard is well presented, aesthetically pleasing and complementary to the character and built form of the local area referred to above. To the extent that it is necessary for this electronic billboard to complement and integrate with the design of buildings or development in the vicinity and complement the local streetscape and present a visually attractive appearance to public areas,  I am satisfied that these design elements have been satisfied, and, again, I note in particular the evidence of Mr Curtis in support of this finding.  For the reasons stated earlier, I am satisfied on the evidence before me that the proposed development does not detract from the operation and safety of the surrounding road network.

1. The proposed development is also alleged to be in conflict with other specific provisions of the Advertising Devices Code.  It is alleged that there is conflict with PC1 which states:

“The total area of advertising signs, on or near an individual site, is to be consistent with the purpose for which the land or building is used and must be complementary to the character of the local area.”

1. The purpose for which the site is being used is as a car park, and the character of the local area is, I have found, as described in the evidence of Mr Curtis.  I am satisfied that a large electronic billboard which carries advertisements directed at passing motorists is a use entirely consistent with the use of the site as a car park.  I find there is no conflict with PC1. 

1. The next alleged conflict with a performance criterion is in respect of PC18.  It states:

“The design and location of the sign seeks to minimise the effect of the device on the built environment or the landscape with particular thought to its effect on any objects of scenic, historic, architectural, scientific or cultural interest.”

1. No objects of scientific, historic, architectural, scientific or cultural interest have been identified in the local area which is essentially a visually cluttered and busy section of a major arterial road. I am satisfied that appropriate conditioning of the electronic billboard and its location immediately adjacent to several lanes of traffic on Bundall Road will minimise the effect of it on the built environment. I am satisfied that appropriate conditioning and the use of LED lighting will minimise the effect of the light generated on the landscape as well as the built environment. I find that there is no conflict with PC18.

1. The next alleged area of conflict is PC19 which states:

“The level of illumination for a sign is safe and consistent with the nature of the surrounding area, and ensures that there is no detriment to the amenity of the area in which a sign is located, including local residential areas.”

1. I am satisfied that there is no impact from the illumination of the proposed electronic billboard from a safety perspective. I am satisfied that the light emitted from the proposed electronic billboard is consistent with the well lit nature of the surrounding area. I am satisfied with appropriate conditions there will be no detriment to the amenity of the area, including in respect of adjourning residences and residences on the opposite side of Bundall Road. I find that there is no conflict with PC 19.

1. The final area of alleged conflict is PC 26, which states:

“The Billboard Sign must be designed and located to complement and not dominate the environment in which the sign is located.”

1. In respect of this particular performance criterion there are a number of acceptable solutions.  These are as follows: 

“AS26.1:  The Billboard Sign is perpendicular to the abutting road.

AS26.2:  The Billboard Sign is of a shape, design and colour that is consistent with existing adjacent structures and streetscape design.

AS26.3:  The Billboard Sign is located as close to the centre of the site frontage as is practicable.

AS26.5:  The number of faces per Billboard Sign is no more than two.

AS26.5:  The angle of a V-shaped Billboard Sign is no greater than 45 degrees.

AS26.6:  The sign is internally illuminated.

AS26.7:  The sign has a maximum single face area of 18m2 … (excluding Third Party Advertising Sign).

AS26.8:  The face length of the sign is greater than its face height.”

1. In my view, each of the acceptable solutions is met by the proposed development. In terms of AS26.2, I accept the evidence of Mr Curtis, which focuses particularly upon the design and colouring of the supporting structure and how it interrelates with the adjoining medical centre and the streetscape design. I therefore find PC 26 is satisfied.

1. I allow the appeal.