OOH! MEDIA PTY LTD and CITY OF SUBIACO - [2016] WASAT 92

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: OOH! MEDIA PTY LTD and CITY OF SUBIACO [2016] WASAT 92

MEMBER: MS R MOORE (MEMBER)

HEARD: 27 AND 28 OCTOBER 2015

DELIVERED : 28 JULY 2016

FILE NO/S: DR 149 of 2015

BETWEEN: OOH! MEDIA PTY LTD
Applicant
AND
CITY OF SUBIACO
Respondent

Catchwords:

Town planning - Development application - Refusal - Replacement of existing aboveroof sign with electronic digital display aboveroof sign - Whether proposed sign represents a traffic safety risk - Whether design and scale of sign is appropriate to the building and locality

Legislation:

City of Subiaco Town Planning Scheme No 4, cl 27, cl 27(4), cl 44, cl 78
Metropolitan Regional Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), s 67, Sch 2 Pt 1
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 24, s 27

Result:

Application for review dismissed
Respondent's decision to refuse development approval affirmed

Summary of Tribunal's decision:

This matter involved a review of the City of Subiaco's decision to refuse development approval for the replacement of an existing aboveroof sign with an electronic digital display aboveroof sign at No 1 Hay Street, Subiaco.
The existing sign is located above an older single storey building currently used as a real estate office on the corner of Thomas Street and Hay Street. There is a wide mix of land uses and built form in the immediate locality and the topography is such that the existing aboveroof sign is highly visible from a number of vantage points, particularly to the north and northeast of the site.
The proposal is to remove the existing sign and install a new sign with an electronic digital display. The display panel of the new sign will be 0.51 metres lower and 3.75 metres wider than the existing sign which results in an increase from 11.61m² to 17.63m² in area.
The issues arising for determination were whether the proposed sign represented a traffic safety risk and whether the design and scale of the new sign would be appropriate to the building and the locality.
The Tribunal found that the proposed location of the new sign above the roof of the existing building and in full view of both west and south bound traffic, combined with the features typical of an electronic billboard type sign with frequently changing digital displays, meant that there was a likelihood of increased driver distraction and the new sign did represent a traffic safety risk.
The Tribunal also found that the proposal, because of its digital nature and rapidly changing content, combined with its size and aboveroof location, would be visually disruptive to the amenity of the area, particularly to the occupants of the residential buildings to the east of Thomas Street. The Tribunal was of the view that the design and scale of the new sign was not appropriate to the building or the character of the locality.
The Tribunal was satisfied that the correct and preferable decision in this matter was to refuse the development approval. The application for review was dismissed and the decision of the respondent to refuse development approval was affirmed.

Category: B

Representation:

Counsel:

Applicant: Mr I Rogers
Respondent: Mr C Slarke

Solicitors:

Applicant: Borello Graham
Respondent: McLeods

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 23 December 2014 oOh! Media Pty Ltd applied for development approval for the replacement of an existing above‑roof sign with an electronic digital display above‑roof sign at No 1 (Lot 1) Hay Street, Subiaco. The application was refused by the City of Subiaco (City or respondent) under delegation by the Manager of Planning Services on 13 April 2015.
oOh! Media Pty Ltd then made an application to the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) for a review of this decision. The Tribunal referred the matter to mediation which was unsuccessful and the matter was listed to a final hearing.
The final hearing was held on 27 and 28 October 2015 and included a view of the site. Subsequent to the hearing, and after the Tribunal had reserved its decision, it became obvious that there were inconsistencies between the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme) as published on the City's website and the Scheme as published on the Western Australian Planning Commission (WAPC) website. In accordance with s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the respondent had provided the Tribunal with a website address for the WAPC published version but the respondent had actually used the Scheme text as published on its own website. Importantly, these two Scheme texts were noticeably different in the Zoning Table which identified 'Advertisement' as an 'X' use in the WAPC version but did not include 'Advertisement' as a use class in the City's version.
The parties were asked to provide the Tribunal with the operative Scheme and, on 12 February 2016, the parties filed with the Tribunal a joint statement setting out their agreed position in relation to:
(a)the operative provisions of the City of Subiaco Town Planning Scheme No. 4;
(b)the manner in which the proposed development of an advertisement is to be assessed under the Scheme; and
(c)whether any further evidence or submissions are required in order to allow the Tribunal to finally determine the review.
This joint statement explained the effect of two Scheme Amendments (Amendment No 2 and Amendment No 18) on the Scheme and stated that the version of the Scheme published on the respondent's website sets out the current provisions of the Scheme as it incorporates the changes made by both Amendment No 2 and Amendment No 18. A copy of the Scheme in the form published on the respondent's website was provided at Attachment 7 to the joint statement and this is the document that the Tribunal has relied upon (not the website link provided in the respondent's s 24 bundle of documents). Having established the operative provisions of TPS 4, the parties contended that the relevant issues and planning considerations for the review had been addressed by the parties' respective statement of issues, facts and contentions (SIFC) and the evidence given during the hearing in October 2015. The Tribunal agreed and reserved its decision in the matter from 21 April 2016.

Site and locality

The site the subject of this review is triangular in shape with an area of 519m² and is located on the south‑western corner of Thomas Street and Hay Street in Subiaco. It has a frontage of 31.7 metres to Hay Street and 45.6 metres to Thomas Street and contains an older single storey building currently used as a real estate office.
There are numerous business‑related signs affixed to the faҁades of the existing building as well as a sign fixed above the roof as described in paragraph 7 of the respondent's SIFC (Exhibit 1):
An advertising sign presently exists on the roof of the building and that sign measures 2.7m by 4.3m (11.61m² in area facing the intersection). The existing sign has third party advertising on the northern side and advertising for the business that occupies the building on the southern side. The existing sign is externally lit. The City's records indicate that approval was granted on 20 November 1997 for a 12m² above roof sign on the Review site.
The immediate locality comprises a variety of land uses and built form as follows:
•immediately to the north is Princess Margaret Hospital for Children;
•on the eastern side of Thomas Street are two landscaped areas, either side of Hay Street, which are reserved for future widening of Thomas Street;
•there is a seven storey residential apartment building to the south‑east of the site;
•there is a six storey residential apartment building to the north‑east of the site;
•further north is an electrical sub‑station and a carpark;
•to the south is a four storey office building;
•immediately to the west on Hay Street are six residential terrace buildings some of which are currently used as offices; and
•further to the west on Hay Street are offices, showrooms and cafes.
The Tribunal viewed the site and the locality in the company of the parties during the hearing in October 2015. It was obvious from the site view that not only is there a wide mix of land uses and built form in the immediate locality, but also the topography is such that the existing above‑roof sign on the subject site is highly visible from a number of vantage points, particularly to the north and north‑east of the site.

Proposal

The proposed development the subject of this review is described by Mr Alan Stewart (a town planner appearing for the applicant) at paragraph 12 of his written witness statement (Exhibit 10) as follows:
It is proposed to remove the existing roof sign and install a new roof sign with electronic digital display. The display panel will be 2.19 metres in height by 8.05 metres in width, resulting in a display area of 17.6m². The digital display panel will be affixed to a cabinet of 1 metre in depth, which will shroud the electronic equipment and structural supports. The proposed sign will be positioned [12.5] metres from the Thomas Street / Hay Street corner of the Review site [where the frontages would meet at corner if no truncation], and will 'sit' upon the roof of the building, with all supporting framework and electronic equipment screened in the 1 [metre] deep cabinet. The Application states that each advertisement will display for a minimum of 30 seconds before transitioning to the next advertisement[;] however, I am advised by the Applicant that the minimum display time is proposed to be increased to 45 seconds. A transition time of 0.1 seconds is proposed between each advertisement and all content will be limited to digital format static displays, with no animation. I understand all advertising, including colours, luminance, display time, transition time and content, is controlled remotely …

Planning framework

Metropolitan Region Scheme

The site is zoned Urban under the Metropolitan Region Scheme (MRS) with a small portion of the site (north‑eastern corner) reserved for 'Other Regional Roads' under the MRS. There was discussion during the hearing about the referral requirements for development on or abutting regional road reservations under the MRS. The respondent referred the application to the Department of Planning and the Department provided the following comments in a letter dated 1 October 2015 (Exhibit 4):
The Department of Planning has no objection to the proposal on transport planning grounds, subject to the following:
•The proposed sign is not to interfere with sight lines, distract drivers, or have the potential to become confused with traffic signals or road signs. This is in accordance with the Commission's advertising on Reserved Land Policy DC 5.4 paragraph 3.3.1.
•All signage is to comply with the requirements of Main Roads (Control of Advertising) Regulations, 1996.
The respondent referred the application to the Department of Transport for comment and the Department replied by email dated 5 March 2015 that it 'is responsible for [approval] of Large Format Digital Signs that are only on Primary Regional Road corridors'. The respondent also referred the application to Main Roads WA which responded by letter dated 4 February 2015 and included a copy of the Main Roads WA 'Conditions for Advertising Signs Beyond State Road Reserves' in order to 'help with an assessment being as road safety is the main issue'.

TPS 4

The site is zoned Commercial/Residential under TPS 4 and is located within Precinct 5 Hay Street East.
Clause 27 of TPS 4 provides general provisions for the determination of applications for development approval. The provisions contained in cl 27(4) of TPS 4 have been superseded by the provisions set out in cl 67 of the deemed provisions contained in Pt 1 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) gazetted on 25 August 2015 and commenced on 19 October 2015.
As discussed at the hearing, in exercising its discretion to grant approval of this development, the Tribunal is required to have due regard to the following relevant matters set out in cl 67 of the deemed provisions:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(e)any policy of the Commission;
(f)any policy of the State;
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following ‑
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(w)the history of the site where the development is to be located;
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application;
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning considerations the local government considers appropriate.
Clause 37 of TPS 4 refers to the Scheme Area being divided into precincts as identified on the Scheme Map. As stated earlier, the site is located within Precinct 5 Hay Street East. The respondent has adopted the Hay Street East Precinct Planning Policy which sets out the planning objectives for the precinct along with the existing character and the desired future character of Hay Street East.
When considering a development application in a Commercial/Residential Zone the respondent, in addition to other matters, shall also have regard to the following aims and objectives in cl 44 of TPS 4:
(1)to develop an area with a strong recognisable identity characterised by development of a mixture of high quality commercial and residential accommodation;
(2)to encourage small-to-medium scale mixed-use development of a type and character appropriate to Hay Street east and Rokeby Road south areas;
(3)to encourage safe pedestrian and vehicle coexistence and/or segregation and to promote design elements with regard to car parking areas which serve to enhance the streetscape and the amenity of the locality;
(4)to encourage retention of heritage character by reinforcing the original development patterns and the recycling of existing building stock;
(5)to encourage pedestrian‑friendly development which is orientated to the street in the traditional manner, enabling surveillance of both the street and pedestrian areas;
(6)the protection and enhancement of the amenity and general environmental standards of existing and future development within and adjoining this zone[.]
Part 1 of Sch 2 of the Regulations includes the following definitions for 'advertisement' and 'amenity':
advertisement means any word, letter, model, sign, placard, board, notice, device or representation, whether illuminated or not, that is used wholly or partly for the purposes of advertising, announcing or directing, and includes ‑
a)any hoarding or similar structure used, or adapted for use, for the display of advertisements; and
b)any airborne device anchored to any land or building used for the display of advertising; and
c)any vehicle or trailer or other similar object placed or located so as to serve the purpose of displaying advertising
amenity means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
The parties' agreed position (as at 12 February 2016) in regards to the assessment of a proposal for an advertisement under the City's Scheme is as follows:
Pursuant to clause 67 of the Scheme:
'A person shall not begin or continue to display an advertisement, other than an existing or exempted advertisement, without having first applied for and having obtained development approval under Part 4.'
The Scheme requires approval to be obtained for a development which is not an exempt advertisement, but does not assign any use class permissibility to advertisements. The intention of the Scheme is that an advertisement is treated as a development (subject to questions of fact and degree) but not as a land use.
This is evident from:
(a)the deletion of the use class 'Advertisement' from the Zoning Table; and
(b)the statement in clause 2 of [Amendment 2] that the reason for deleting the reference P(3) relating to advertisements from clause 14(6) of the Scheme is that the 'Control of advertisements is to be more comprehensively addressed in Division 9 of Part 5.'
The parties note that context, in the wide sense to include legal and historical background, is relevant to the interpretation of legislation, including delegated legislation: Re Shire of Mundaring; Ex Parte Solomon and Ors [2007] WASCA 132 at [24], and the cases cited therein.
The result is that in assessing the merits of the proposed development of an advertisement, issues associated with:
(a)use class permissibility;
(b)whether the proposed development is an extension of a non‑conforming use; and
(c)whether the development is a use not listed in the Scheme,
do not arise for consideration.
The parties acknowledge that case law indicates third party advertisements can be a use of land. In APN Outdoor and City of Cockburn [2014] WASAT 32, the Tribunal concluded that a third party advertising sign should be treated as a use not listed in the applicable scheme. The parties contend APN Outdoor can be distinguished from this case, as the City of Cockburn scheme considered in that case did not contain provisions equivalent to Division 9 of Part 5 of the Scheme with respect to the control of advertisements.
Deemed provisions
The term 'advertisement' is defined in clause 1 of the deemed provisions contained in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Regulations). This definition presumably supersedes the Scheme definition of 'Advertisement', however this has no consequence for the review as:
(a)the definition of advertisement in the Regulations is not materially different to the Scheme definition of Advertisement;
(b)the Applicant's proposed development falls within the definition of advertisement in the Regulations; and
(c)the Applicant's proposed advertisement is not an exempted development work under clause 61(1)(g) of the deemed provisions.
The City of Subiaco Local Planning Policy 2.18 Advertising Signs (Advertising Signs Policy) is a planning policy adopted in accordance with cl 78 of TPS 4 and is relevant to this review. The Advertising Signs Policy is addressed in more detail later in these reasons.

City's decision

The applicant lodged an application for development approval to replace the existing above‑roof sign on the subject site with a new above‑roof sign as described above. The application was advertised for comment and three submissions were received. Two submissions were from local residents objecting to the proposal. The third submission was a letter dated 3 February 2015 from the City of Perth which stated that the City did not support the new electronic sign for the following reasons:
•The sign has not been designed as an integral part of the building;
•The sign will appear out of proportion with the scale of the building on which it is located;
•The sign will be oriented towards passing motorists rather than to pedestrians, representing a traffic safety hazard; and
•The application does not include detailed drawings to demonstrate how the structural components of the sign will be concealed to ensure a high standard of construction and to ensure the visual impacts of the components are minimised.

The letter also stated that 'the proposal would not be supported within the City of Perth as "above roof signs" are not permitted anywhere in the City of Perth under the City's Signs Policy 4.7 of City Planning Scheme No 2, for reasons similar to those listed above'.
The respondent refused the proposed development under delegation on 13 April 2015 for the following reason:
1.The proposal would not be consistent with clauses 7a and 44(6) of Town Planning [S]cheme No. 4 and Part 7.3 ‑ Safety of Planning Policy 2.18 'Advertising Signs', as the size, scale[,] orientation and luminance of the proposed advertising sign would have the potential to unreasonably distract and confuse motorists which would endanger the safety of the public.

Issues

The following two issues were identified by the respondent as arising for determination by the Tribunal:
1)Whether the proposed sign represents a traffic safety risk.
2)Whether the design and scale of the sign is appropriate to the building and locality.
The applicant disputed issue 2 and argued that 'the sole basis of the respondent's refusal relates to safety and, more specifically, whether or not the applicant's proposed above‑roof sign constitutes a risk to traffic or pedestrian safety'.
In review proceedings the Tribunal is not limited by the reasons for refusal as articulated by the original decision‑maker, and in order to come to the correct and preferable decision as required by s 27 of the SAT Act, the Tribunal considers it necessary in this case to assess whether the design and scale of the proposed sign is appropriate to the existing building and the locality.
These issues need to be addressed within the broader context of whether the proposed development warrants approval or refusal, having regard to the relevant factors identified in cl 67 of the deemed provisions.

Issue 1: Whether the proposed sign represents a traffic safety risk

It was the respondent's contention that the proposed sign has the potential to influence the safe movement of road users including motorists, cyclists and pedestrians, causing confusion and reducing the legibility of the traffic signals at the intersection of Hay Street and Thomas Street, particularly as both of these roads are reserved as 'Other Regional Roads' under the MRS.
Whereas it was the applicant's contention that the proposed sign does not constitute a risk to the safety of motorists, cyclists and pedestrians because:
(a)it will be visible to motorists and cyclists travelling south on Thomas Street and west on Hay Street for approximately 150m and 100m respectively and to pedestrians standing at the intersection of those streets;
(b)it will not display live, flashing or animated content, imagery or use colours, symbols, shapes or lettering that:
(i)is normally used for traffic control or warning, incident or traffic management, or road safety or driver information messages; and
(ii)could be mistaken for a traffic sign or traffic control signal;
which reduces any distraction to motorists driving, and cyclists cycling, south on Thomas Street and west on Hay Street and pedestrians crossing the intersection of those streets;
(c)the content and imagery displayed on it will:
(i)be restricted to static displays that contain only single, 'self‑contained' messages;
(ii)have a 'dwell' duration (or display time) of not less than 30 seconds;
(iii)have a transition duration (or time) between content and imagery not exceeding 0.1 seconds (which prohibits transitional effects such as fly‑in, fade‑out and scrolling),
which reduces any distraction to motorists driving, and cyclists cycling, south on Thomas Street and west on Hay Street and pedestrians crossing the intersection of those streets;
(d)it will comply with relevant standards applying to luminance and glare such that it will not cause any distraction to motorists driving, and cyclists cycling, south on Thomas Street and west on Hay Street and pedestrians crossing the intersection of those streets;
(e) there is adequate separation (both vertically and horizontally) to traffic signals (lanterns) at the intersection such that the above roof sign:
(i)does not block motorists', pedestrians' and cyclists' views of those traffic signals (lanterns); and
(ii)will not confuse motorists driving, and cyclists cycling, south on Thomas Street and west on Hay Street or pedestrians crossing the intersection of those streets by reducing the clarity or legibility of the traffic signals (lanterns);
(f)pedestrians and cyclists crossing (on foot by pushing their bicycles) at the intersection may misuse or ignore the symbolic pedestrian displays and audible tactile facilities incorporated on the traffic signals, with these signals configured to allow pedestrians (and cyclists pushing their bicycles) to cross in parallel with traffic, with vehicles required to give way to pedestrians when turning left or right across their path; and
(g)motorists driving, and cyclists cycling, south on Thomas Street and west on Hay Street may misuse or ignore the traffic signals.
In summary, it was the applicant's contention that the proposed above‑roof sign:
(a)is not a traffic safety risk;
(b)will not materially or unacceptably increase the risk of collisions between vehicles and pedestrians at the intersection of Thomas Street and Hay Street, or crossing the intersection, or between vehicles and other vehicles and cyclists travelling along Thomas Street and Hay Street, or at the intersection; and
(c)satisfies [P]art 7.3 of the [respondent's Advertising Signs Policy].
The parties called two traffic experts to give evidence in relation to whether the proposal represents a traffic safety risk:
•Mr Behnam Bordbar, a transport planner and traffic engineer, appeared on behalf of the applicant; and
•Mr Donald Veal, a transport planner and traffic engineer, appeared on behalf of the respondent.
Mr Bordbar and Mr Veal prepared a joint statement in which they identified the matters on which they agreed and the matters on which they disagreed. The matters on which they agreed are:
1)The crash history for the intersection of Thomas Street and Hay Street rank the intersection as number 150 in Western Australia with 92 recorded crashes in the five years to the end of 2014.
2)The Main Roads WA Guideline on Roadside Advertising (Main Roads WA Guideline) is the most appropriate document that provides a set of criteria for the assessment of the proposal and the assessment of the traffic safety risk posed by the type of advertising sign being proposed.
3)The Main Roads WA Guideline only applies to State Roads controlled by Main Roads WA or to locations visible to State Roads.
4)Neither Thomas Street nor Hay Street is a State Road controlled by Main Roads WA.
5)The Main Roads WA Guideline sets out selection criteria for roadside advertising including the lateral placement, the longitudinal placement and the physical characteristics of advertising signs.
6)In terms of the lateral placement the proposed sign location would not pose any risk in terms of a possible collision with an errant vehicle.
7)The criteria governing physical characteristics of the proposed advertising sign such as size and shape, colour, illumination and luminance, movement and rotation, advertising content and supporting structure, can all be set such that they meet the requirements of the Main Roads WA Guideline.
In terms of their differences, Mr Veal was of the view that the physical characteristics of the sign are only relevant if the sign is located in an appropriate location, whereas Mr Bordbar was of the view that there is no need for an assessment of the location because a sign has been in this location for nearly 20 years; therefore, the physical characteristics of the sign are the only relevant criteria. Mr Veal said it was important to consider the location of the sign as its installation is being considered in a high casualty crash location and in a Device Restriction Area for a four‑way intersection (as defined by the Main Roads WA Guideline) and is very different from the existing static sign because it will change the image displayed frequently (every 45 seconds). This has the potential to distract road users at critical moments when they need to be concentrating on safely negotiating the intersection. Mr Bordbar said he does not view the changing nature of the sign display as posing a significant risk to road user safety; is not aware of the existing sign contributing to any crashes; and believes that signs in general are designed to be seen and therefore, by default, do not necessarily distract drivers to a point that undermines road safety.
It was Mr Veal's opinion that the proposed sign was unsuitable as there was a significant likelihood of the sign adversely impacting road user safety and adversely impacting the operational efficiency of the intersection. While Mr Bordbar was of the opinion that the proposed sign will not unreasonably distract or confuse motorists or endanger the safety of the public as the sign is of acceptable dimensions; will be aligned horizontally; is static with no movement or rotation; will display a static advertisement with a minimum dwell time of 45 seconds; and will not obstruct or interfere with any traffic control signs or devices or with the driver's view of hazards as it is located outside the road reserve.
The Tribunal agrees with Mr Veal's opinion, that an assessment of the location of the proposed sign is warranted because the proposed sign is different to the existing sign in terms of size (height and width), display content, illumination and location on the site. The Tribunal prefers the evidence of Mr Veal in terms of the suitability of the sign in this location, and finds that the proposed sign uses a different technology to deliver advertising content (digital) and changes much more frequently than the existing sign, making it significantly more noticeable and therefore increasing the potential to distract road users.
The applicant also called Professor Simon Washington, Transport and Main Roads Chair at the Queensland University of Technology, to give evidence. Professor Washington based his expert opinion on his international experience on the safety impact of electronic billboards (EBBs) on driver safety. His conclusions were:
1)The relevant question is not whether the EBB has any effect on road safety but whether the safety effect is negligible or not.
2)A deep examination of the relative safety impacts of all features in the roadway environment is required as everything in the road environment has an opportunity to distract and capture the gaze of drivers. A distinction between negligible and non‑negligible distractions and a focus on significant impacts on crashes is required.
3)The best available international evidence does not support a negative safety impact of EBBs; on the contrary, it consistently reveals a significant lack of a significant safety effect of EBBs. They do not seem to be associated with increased crashes at sites where they are installed, or at least their safety effect is negligible.
4)This is not surprising as drivers routinely filter out distractions to focus on their primary task of driving.
5)The proportion of crashes where EBBs may contribute to their occurrence in Western Australia is extremely small or negligible. The relative crash risk of being exposed to EBBs is significantly smaller than numerous non‑regulated activities including eating and drinking, using the radio or CD player, and adjusting vehicle climate controls.
6)Drivers process a variety of inputs and prioritise matters which require their attention. Evidence suggests that drivers can choose not to look at EBBs (or the myriad of other roadside distractions) and focus on the driving task.
7)The proposed EBB at Hay Street and Thomas Street poses a negligible, or ignorable, crash risk to motorists, pedestrians or cyclists, based on the most reliable evidence in the literature (observational before‑after studies), based on relative estimates of crash risk (based mainly on simulator studies) and on photographic evidence of the proposed site and similar sites in Western Australia.
It was Professor Washington's view that the proposed sign does not conflict with traffic signals or the line of sight of vehicle drivers and the proposed sign does not constitute an unusual driving distraction to motorists as it is quite typical of EBB installations elsewhere where no evidence of a statistically significant effect on traffic crashes has been found. He therefore concluded that the proposed sign will not detract from road users' safety at this site and will not pose a traffic safety risk because he had no reason to believe that the proposed EBB presents a non‑negligible risk to road users.
Mr Veal had concerns about Professor Washington's evidence as well as the road safety report prepared by KCTT on behalf of the applicant (Exhibit 2). It was Mr Veal's opinion that local context is important to remember when making global or national comparisons as there may be different crash rates, different driving environments, and electronic billboards may be more commonplace. Mr Veal commented specifically on the international studies provided by Professor Washington. He focused on Study 2 which included intersections in Canada with sites comparable to the subject site, and expressed his concern that the findings indicated that EBBs were looked at by almost every passing motorist, that most drivers reported that the signs had a negative effect on road safety and that there were large increases in sudden braking for no apparent reason, with a 43.2% increase in rear end crashes, albeit that this was noted as non‑significant.
During the hearing Professor Washington explained to the Tribunal that while drivers may be distracted by the existence of an EBB, the evidence was that this does not translate into more crashes, probably because drivers modify their behaviour and adapt to what they perceive as a more hazardous situation.
The Tribunal accepts Professor Washington's evidence that the current available international research indicates that the installation of EBBs have a non‑significant effect on traffic safety. This appears to be explained by the idea that drivers can self‑regulate their behaviour to compensate for the effects of increased distraction. The academic research papers provided to the Tribunal by Professor Washington do not indicate a statistically significant effect on traffic crashes due to EBBs but they do indicate an increase in levels of driver distraction which is of concern to the Tribunal.
Mr Veal noted that there are more recorded crashes at this intersection at night and that an electronic billboard sign would increase the risk of night‑time crashes as the sign would stand above the building line and would be seen against the night sky with no other significant light source for it to compete with. The Tribunal accepts this evidence, particularly as the proposed electronic sign has an illuminated digital display that changes frequently, is more than 50% larger than the existing sign and will be more noticeable than the existing illuminated static above‑roof sign, notwithstanding the fact that it will be lower in height than the existing above‑roof sign.
The Tribunal prefers Mr Veal's evidence over that of Mr Bordbar in relation to traffic safety risk, and finds that the proposed location of the sign above the roof of the existing building and in full view of both west and south bound traffic, combined with the features typical of an electronic billboard type sign with frequently changing digital displays, means that there is the likelihood of increased driver distraction as a result of the proposal. Whether or not this increased level of driver distraction translates into an increased number of crashes, the Tribunal believes that the proposed sign represents a traffic safety risk.

Issue 2: Whether the design and scale of the sign is appropriate to the building and locality

The respondent contended that the scale and design of the proposed sign is incongruous with its setting and has the potential to dominate the intersection and the existing building on the subject site, whereas it was the applicant's contention that the application is for a replacement sign which will be an improvement to the amenity of the area because of the reduction in overall signage area; the ability to control the night‑time luminance of the sign; and the improved appearance by covering the support structure of the sign.
As stated earlier, the respondent's Advertising Signs Policy is relevant to the consideration of this proposal. Its objectives are:
•to improve the quality and appropriateness of advertising signs through the application of good design principles;
•to consolidate advertising signs where appropriate;
•to limit the proliferation of advertising signs; and
•to ensure that advertising signs do not present a hazard or obstruction to pedestrians or block motorists' view of traffic information signs or traffic lights.
Part 5 of the Advertising Signs Policy lists the standards for signs that are exempt from the requirement to obtain development approval, and Part 6 of the Policy sets out the type of signs that do require development approval and include 'above‑roof signs'. The proposed sign is considered to be an 'above‑roof sign' as it protrudes above the normal roofline of the building. Part 6 of the Advertising Signs Policy also states that the City will generally not approve the provision of an above‑roof sign (or any of the signs listed in Part 6) to a commercial premises because they do not provide a positive contribution to the amenity and built form of the locality.
It is common ground that the proposed sign is not exempt from the requirement to obtain development approval and requires assessment in accordance with the principles set out in Part 7 of the Advertising Signs Policy:
7.1Appropriateness to setting
The design and scale of advertising signs should be appropriate to their setting and to the predominant character of the locality.
The City will consider the following matters when assessing advertising signs that require development approval:
•The scale and design of signs should be appropriate to the building to which they relate. The building should be used as a frame for new signage.
•The scale and design of signs should be compatible with existing surrounding development and be appropriate to the general nature of land use in the area.
•Signs should not block important views, obscure architectural detailing or be detrimental to the amenity of nearby properties.
•Signs should not result in the destruction of important elements of the building fabric.
•Building facades should not be spoiled by clumsy and unsightly methods of securing a sign or providing electrical services to a sign.
•Where a building is not provided with an awning or verandah, the City will consider the provision of a projecting sign provided that it accords with the standards for an under verandah sign and provided that its maximum [height] is less than 3.4m above ground level.
7.2Consolidation of signs
Visual noise results when too many signs compete for the viewer's attention and it may be beneficial to rationalise the signs on a site into a more cohesive and attractive visual statement.
The City encourages the rationalisation of signage in circumstances where:
•signs have been installed in an ad-hoc manner over an extended period of time; or
•… several businesses are located in close proximity to one another and form part of a shopping centre or similar commercial aggregation.
7.3Safety
A sign should not in any way endanger the safety of the public, display advertising which resembles any traffic signs or which constitute a traffic hazard. The City will not support advertising signs which:
•present a hazard or obstruction to pedestrians[;]
•block motorists['] and cyclists['] views of traffic information signage or traffic lights;
•are not well secured; or
•are highly illuminated so as to detrimentally impact on the safety of motorists or pedestrians.
Design
The following design principles should be considered when designing advertising signs:
•Advertising signs are generally most effective when they are simple and clear.
•An attractive or interesting building can act as a sign in its own right and also makes a positive contribution to the streetscape and the local community.
•Provision of a memorable landmark such as a clock or public artwork can draw attention to a site. This is a more subtle form of advertising that has the potential over time to become a well‑known civic feature.
•Quality landscaping can create a memorable and highly visible identity for a business.

The following planning experts gave evidence during the hearing:
•Mr Alan Stewart, a town planner, appeared for the applicant; and
•Mr Thomas Hockley, a town planner, appeared for the respondent.
It was Mr Stewart's opinion that the proposed sign is compatible with the existing surrounding development and is appropriate to the nature of land uses in the locality. In relation to light spill, Mr Stewart referred to the report prepared by Electrolight Australia Pty Ltd for the applicant (Exhibit 2) which said that the sign's 'controlled lighting distribution limits obtrusive lighting in unnecessary viewing locations and limits upward light spill and light pollution'. Mr Stewart did not consider that light from the digital sign would have an adverse impact on the amenity of the area, including the amenity of the residential buildings on the east side Thomas Street. It was his view that the residential apartment buildings on the east side of Thomas Street are set 50 to 70 metres away from the site and are behind numerous tall trees which assist in screening the sign from the buildings.
Mr Stewart compared the existing sign with the proposed sign and was of the opinion that the proposed sign will improve the visual amenity of the area because all structural framework and electronic equipment will be enclosed within a one metre deep shroud integrated into the overall design of the sign; the height of the sign will be reduced (2.7 to 2.19 metres) although the width will be increased (4.3 to 8.05 metres); and the sign will be positioned further back on the roof of the building (12.5 metres from the intersection). Mr Stewart was of the view that 'the proposed sign will have a contemporary digital format and less visual impact on the locality compared to the existing sign, due to its size, shape and position'.
Mr Stewart was also of the opinion that the proposal to remove the existing two‑panel sign (with a total display area of 23m² plus visual structural supports) and replace it with a contemporary digital sign (with a display area of 17.6m² plus shrouded structural and electrical elements) is consistent with the consolidation provisions of Part 7.2 of the Advertising Signs Policy.
Whereas it was Mr Hockley's view that 'due to the apparent age of the existing above‑roof sign and recognising the evolution of the Advertising Signs Policy, the assessment of the proposed above‑roof sign should be considered afresh based on the current planning framework, given that it represents an entirely new structure in a new location on the roof of the existing building and the size of the proposed sign is substantially larger than the sign that was approved and currently exists'.
It was Mr Hockley's opinion that the proposed sign is not characteristic of the locality, which he said typically comprises wall and window signage utilised for the purposes of identifying the business occupying the premises. He was of the view that as the proposed sign would span the majority of the roof space of the existing building and would appear as an independent structure, it would introduce a significant visual element into the intersection of Thomas Street and Hay Street. Mr Hockley considered the scale and design of the proposed electronic above‑roof sign to be incompatible with the existing surrounding development as it would dominate the roof space of the existing building due to its size and high visibility as an illuminated and interchangeable screen. He felt that there were already excessive amounts of signage affixed to the walls of the existing building on the site and noted that the proposal increases the existing approved signage from 11.61m² to 17.63m², which is more than a 50% increase.
In relation to the assessment of the proposed sign against the principles set out in Part 7 of the Advertising Signs Policy, the Tribunal prefers the evidence of Mr Hockley and finds that the proposed electronic sign is not appropriate to its setting; will not result in the consolidation of signs on the site; and will not make a positive contribution to the streetscape or the local community.
The Tribunal is not convinced by the applicant's argument that the proposed replacement sign will improve the amenity of the area because it is 600 millimetres lower in height (but 4 metres wider); is set back further from the intersection than the existing sign; will have concealed structural supports; and has the ability to manage its light spill, particularly at night. The Tribunal is of the view that the proposed electronic sign because of its digital nature and rapidly changing content, combined with its size and above‑roof location, will be visually disruptive to the amenity of the area, particularly to the occupants of the residential buildings to the east of Thomas Street.
In terms of size, the existing above‑roof sign on the site is approved with an area of 12m². The existing sign has 11.61m² of third party signage on the north‑eastern façade and signage relating to the commercial activity of the occupant of the building on the other façade. The proposed sign will be increased in size to 17.63m² but will only have signage on one side. The Tribunal does not accept the applicant's argument that this is a reduction in overall signage as the Tribunal is not convinced that the south‑facing commercial activity related signage has ever been approved. The Tribunal considers the proposal to be an application for a sign more than 50% larger than the existing approved sign. The proposal does not limit the proliferation of advertising signs nor does it help in the consolidation of advertising signs.
The Tribunal acknowledges that the site has contained an above‑roof sign for a number of years and this does form part of the character of the locality, and, as described earlier in these reasons, the character of the locality comprises a variety of land uses and built form. But the Tribunal is of the view that a static advertising sign that is externally lit and changes its content at either weekly or monthly intervals has a very different character to a contemporary digital sign that changes its content every 45 seconds. The proposed electronic digital sign will have a significant and adverse impact on the character of the locality.
The Tribunal is of the view that the design and scale of the proposed sign is not appropriate to the building or the character of the locality. The Tribunal finds that the proposed above‑roof sign does not satisfy the principles set out in Part 7 of the Advertising Signs Policy.

Conclusion

Having addressed each of the issues identified for determination, the Tribunal will now address other relevant matters identified in cl 67 of the deemed provisions not already encompassed in the discussion of these issues.
The Tribunal is of the view that the proposal is visually disruptive and has the potential to adversely impact on future high quality commercial and residential development in the area. The proposal does not enhance the streetscape or the amenity of the locality and also has the potential to limit future development of the subject site. The Tribunal finds that the proposal does not satisfy the aims and objectives of the Commercial/Residential zone in TPS 4.
In terms of the Hay Street East Precinct planning objectives, the proposed sign will not help develop a strong identity or vibrant mixed use area characterised by commercial and residential development due to its adverse impact on the amenity of the locality.
Taking into consideration these findings and those made in relation to the identified issues above, the Tribunal is satisfied that the correct and preferable decision in this matter is that the application for development approval is refused. The application for review is dismissed and the decision of the respondent to refuse development approval is affirmed.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 13 April 2015 to refuse the replacement of an existing above‑roof sign with an electronic digital display above‑roof sign at No 1 (Lot 1) Hay Street, Subiaco is affirmed.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, MEMBER