OOH! MEDIA PTY LTD and DEPARTMENT OF TRANSPORT
[2017] WASAT 68
•10 MAY 2017
OOH! MEDIA PTY LTD and DEPARTMENT OF TRANSPORT [2017] WASAT 68
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 68 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:157/2016 | 19 AND 20 DECEMBER 2016 | |
| Coram: | MS L EDDY (MEMBER) | 10/05/17 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed. Decision of respondent to refuse application to remove existing sign located on roof of building and install new electronic display sign on roof of existing building affirmed | ||
| B | |||
| PDF Version |
| Parties: | OOH! MEDIA PTY LTD DEPARTMENT OF TRANSPORT |
Catchwords: | Planning Development application Digital advertising sign on roof of existing building Whether can be satisfied no road safety risk caused by proposed sign Device restriction zone Whether satisfied no negative impact on amenity Whether obtrusive light spill |
Legislation: | Metropolitan Region Scheme, cl 30(1) Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 1 Planning and Development Act 2005 (WA), s 252(1) Town of Cottesloe Local Planning Scheme No 3, cl 1.6, cl 4.2.1 |
Case References: | Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 |
Orders | The Tribunal Makes the following orders:,1. The decision of the repondent, on 27 April 2016, to refuse the applicant's request for development approval to remove an existing sign located on the roof of a building at 443 Stirling Highway, Cottesloe and install a new electronic display sign on the roof of the existing building the proposed development is affirmed.,2. The application is dismissed. |
Summary | The applicant requested development approval to remove an existing sign located on the roof of a building on Stirling Highway, Cottesloe and install a new electronic display sign in its place. The part of the site in which the proposed sign was proposed to be installed was subject to a reservaton under the Metropolitan Region Scheme for 'Primary Regional Road'. The respondent (who had been delegated the decision making authority by the Western Australian Planning Commission) refused the application, partly on the basis that the proposal did not comply with the Main Roads WA policy 'Policy and Application Guidelines for Advertising Signs Within and Beyond State Road Reserves (MRWA Guidelines).,The Tribunal determined that the proposed sign was inconsistent with a provision of the MRWA Guidelines because it was proposed that the sign be placed in a location that came within the meaning of the Device Restriction zone in the MRWA Guidelines. The Tribunal was not satisfied, on the evidence before it, that the proposed sign would not pose a road safety risk. For this reason, there was no cogent reason to depart from the MRWA Guidelines. The Tribunal determined that it could not be satisfied that approval of the proposed development would be consistent with the objectives of Development Control Policy 5.4 in relation to the need to ensure the safe and efficient use of roads.,In relation to amenity, the Tribunal was not satisfied that the proposed sign would have a negative impact on amenity because of light spill. However, the Tribunal was not satisfied that the digital nature of the sign and the rapidly changing content of the material displayed on the sign, would not have an adverse impact on amenity because there was an absence of evidence on which the Trbunal could properly rely on this topic.,The Tribunal therefore determined that the correct and preferable decision was to refuse to grant development approval for the proposed sign. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : OOH! MEDIA PTY LTD and DEPARTMENT OF TRANSPORT [2017] WASAT 68 MEMBER : MS L EDDY (MEMBER) HEARD : 19 AND 20 DECEMBER 2016 DELIVERED : 10 MAY 2017 FILE NO/S : DR 157 of 2016 BETWEEN : OOH! MEDIA PTY LTD
- Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Planning - Development application - Digital advertising sign on roof of existing building - Whether can be satisfied no road safety risk caused by proposed sign - Device restriction zone - Whether satisfied no negative impact on amenity - Whether obtrusive light spill
Legislation:
Metropolitan Region Scheme, cl 30(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 1
Planning and Development Act 2005 (WA), s 252(1)
Town of Cottesloe Local Planning Scheme No 3, cl 1.6, cl 4.2.1
Result:
Application dismissed. Decision of respondent to refuse application to remove existing sign located on roof of building and install new electronic display sign on roof of existing building affirmed
Summary of Tribunal's decision:
The applicant requested development approval to remove an existing sign located on the roof of a building on Stirling Highway, Cottesloe and install a new electronic display sign in its place. The part of the site in which the proposed sign was proposed to be installed was subject to a reservaton under the Metropolitan Region Scheme for 'Primary Regional Road'. The respondent (who had been delegated the decision making authority by the Western Australian Planning Commission) refused the application, partly on the basis that the proposal did not comply with the Main Roads WA policy 'Policy and Application Guidelines for Advertising Signs Within and Beyond State Road Reserves (MRWA Guidelines).
The Tribunal determined that the proposed sign was inconsistent with a provision of the MRWA Guidelines because it was proposed that the sign be placed in a location that came within the meaning of the Device Restriction zone in the MRWA Guidelines. The Tribunal was not satisfied, on the evidence before it, that the proposed sign would not pose a road safety risk. For this reason, there was no cogent reason to depart from the MRWA Guidelines. The Tribunal determined that it could not be satisfied that approval of the proposed development would be consistent with the objectives of Development Control Policy 5.4 in relation to the need to ensure the safe and efficient use of roads.
In relation to amenity, the Tribunal was not satisfied that the proposed sign would have a negative impact on amenity because of light spill. However, the Tribunal was not satisfied that the digital nature of the sign and the rapidly changing content of the material displayed on the sign, would not have an adverse impact on amenity because there was an absence of evidence on which the Trbunal could properly rely on this topic.
The Tribunal therefore determined that the correct and preferable decision was to refuse to grant development approval for the proposed sign.
Category: B
Representation:
Counsel:
Applicant : Ms B Moharich
Respondent : Mr J Misso
Solicitors:
Applicant : Moharich and More
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Introduction
1 In January 2016, Rowe Group, on behalf of oOh! Media Pty Ltd (applicant), requested development approval to remove an existing sign located on the roof of a building at 443 Stirling Highway, Cottesloe (site) and install a new electronic display sign on the roof of the existing building. The proposed sign will consist of a digital colour screen 2.19 metres high and 8.05 metres wide, and will display static images with a dwell time of 40 seconds. The proposed sign will have a 0.1 second transition time between images, and will be internally illuminated.
2 A significant portion of the site (and in particular the portion of the site within which the proposed sign is to be located), is currently reserved under the Metropolitan Region Scheme (MRS) for 'Primary Regional Road'. The remainder of the site is zoned 'Residential' under the Town of Cottesloe Local Planning Scheme No 3 (LPS3).
3 By delegation published in the Government Gazette on 18December2015 (see tab 9 of Exhibit 1), the WesternAustralian Planning Commission (WAPC) delegated its functions in respect of the determination of applications for development in relation to large format digital signage on land or abutting land reserved under the MRS for the purpose of Primary Regional Road to the Managing Director, Policy, Planning and Investment Transport for the Department of Transport (respondent). This delegation is subject to the conditions specified in clause 5 of section B of the delegation.
4 There was no dispute between the parties that the proposed sign comes within the meaning of 'large format digital signage' for the purposes of the delegation. As a consequence of this delegation, the applicant's request for development approval was referred to the respondent for determination. By notice dated 27 April 2016, the respondent refused the application for development approval in relation to the proposed sign. The reasons given for that refusal were stated in the notice to be:
1) The sign is partially located over land reserved for a Primary Regional Road and may impact on future acquisition and compensation costs when the land is required for future road upgrade purposes;
2) The sign is located within a 'Device Restriction area' as defined in Main Roads 'Policy and Application Guidelines for Advertising Signs within and Beyond State Road Reserves (June 2015)' and therefore fails to comply with the longitudinal placement requirements outlined in section 3, Part 3.1.1.2 and Figure 1 Diagram 5 of Appendix A;
3) The sign does not comply with the Town of Cottesloe's Signs Local Law; and
4) The sign will adversely impact on the amenity of the residential character of the locality.
5 On 25 May 2016, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act2005 (PD Act) seeking review of the respondent's decision.
6 The matter was listed for a final hearing before the Tribunal on 19 and 20 December 2016, at the conclusion of which, the Tribunal's decision was reserved. Following are the Tribunal's reasons for decision in relation to this application for review.
Site and locality
7 The site that contains the building on which the proposed sign is to be installed is located at the intersection of Clive Road and Stirling Highway. Existing residential dwellings abut the site to the south and west. The site is adjacent to a curve on Stirling Highway, although the building on the site is located just after that curve.
8 The site is located approximately 43 metres south of the intersection of Congdon Street (northbound) and Stirling Highway, and 69 metres south of the intersection of Congdon Street (southbound) and Stirling Highway. Congdon Street is a dual carriageway which provides a direct connection between Stirling Highway and Railway Street and is classified as a 'local distributor' road by Main Roads WA, as it provides a connection between a primary distributor (Stirling Highway) and a local distributor (Railway Street), and carries approximately 1,400 vehicles per day. Congdon Street has a large park area that separates the northbound and southbound carriageways.
9 The existing sign on the building on the site is approximately 2 metres high and 8 metres wide, and is situated above a supporting plinth. The top of the existing sign is approximately 3.21 metres above the roof of the building. The existing sign is externally lit by two floodlights.
Planning framework
Metropolitan Region Scheme
10 As the proposed sign is intended to be located on the part of the existing building that is currently within the part of the site subject to the MRS reservation, an application for development within that part of the site must be determined under the MRS (see Exhibit 1) rather than under LPS 3. Clause 30(1) of the MRS provides that:
The Commission or a local authority exercising the powers of the Commission so delegated to it under the Planning and Development Act 2005 may consult with any authority that in the circumstances it thinks appropriate; and having regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenities of the locality may, in respect of any application for approval to commence development, refuse its approval or may grant its approval subject to such conditions if any as it may deem fit.
Policies
11 The WAPC has a relevant policy, Development Control Policy 5.4 (Advertising on Reserved Land) dated March 2005 (DC 5.4, see Exhibit 2), that sets out objectives and considerations that the Commission considers should ordinarily be taken into account in determining applications for the display of advertisements on land reserved under a region scheme.
12 The objectives of DC 5.4 are specified to be:
2.1 To preserve and enhance the amenity of the reserved land and surrounding zoned land.
2.2 To ensure the safe and efficient use of roads from which the advertisement is visible.
2.3 To protect the future use of the reserved land by recognising the temporary nature of an advertisement.
13 Clause 3.2 of DC 5.4 relevantly states:
3.2.1 The number, size, location and appearance of advertisements must be carefully controlled in order to protect the amenity of the locality. Approval will only be granted if the WAPC is satisfied that the proposal will not detract from the amenity of the reservation and the locality generally.
3.2.2 The purpose for which the land is reserved is a primary consideration which the WAPC will take into account in determining an application for an advertisement.
…
14 Clause 3.3.1 of DC 5.4 further provides that:
Advertisements often compete for the attention of the passing public and therefore proposals for advertisements in prominent locations near busy roads and intersections will be examined in the context of road safety and efficiency. Such advertisements are not acceptable if they interfere with sight-lines, distract drivers, or have the potential to hinder the interpretation of or become confused with traffic signals or road signs.
15 The Commissioner of Main Roads WA has also issued a relevant policy: 'Policy and Application Guidelines for Advertising Signs Within and Beyond State Road Reserves' (MRWA Guidelines, see Exhibit 1). The purpose of this policy is stated in cl 2.2 as:
… to provide guidance on the assessment and approval of applications to display roadside advertising within State road reserves and beyond the boundaries of, but visible from, State road reserves[.]
16 Clause 3.1 of the MRWA Guidelines relevantly provides:
Roadside advertising devices are one of many stimuli confronting road users. The driver needs to assess the relevance of these stimuli to the driving task. Cognitive assessment of roadside objects or devices becomes more difficult as the level of the driver attention, distraction and decision making is increased.
The general permission cirteria for the display of advertising devices within the boundaries of, or visible form statecontrolled roads are intended to ensure that:
• A high level of safety for road users is maintained
• Traffic efficiency is assured
An advertising device may be considered a traffic hazard if it interferes with road safety or traffic efficiency; or if it:
• Interferes with the effectiveness of traffic control devices (e.g. traffic signals, stop or give way signs), or
• Distracts a driver at a critical time (high demand, decision making areas), or
• Obscures a driver's view of a road hazard (e.g. curves, traffic Stopping Sight Distance), or
• Gives instructions to traffic to 'stop', 'halt' or other (give way, merge, turn), or
• Imitates a traffic control device, or
• Is a dangerous obstruction to road or other infrastructure, traffic, pedestrians, cyclists or other road users, or
• Is in an area where there are several devices and the cumulative effect of those devices may be potentially hazardous, distracting or demanding
To maintain safety and efficiency for road users, the following three main areas should be controlled for proposed advertising devices:
1) Site Selection which comprises
a) The lateral placement of the advertising device to ensure the device does not become a hazard for errant vehicles, and to ensure the effectiveness of official traffic signs.
b) The longitudinal placement of the advertising device to minimise the driver distraction, and control the demand placed on a driver.
2) Physical Characteristics of the Advertising Device including shape, colour, illumination, font size and content (which can influence the extent of driver distraction or confusion).
3) Crash History to ensure the device is not placed in a high crash rate area or at an intersection with high casualty crash densities.
17 Clause 3.1.1 of the MRWA Guidelines sets out site selection criteria and relevantly, at cl 3.1.1.2 provides for 'longitudinal' placement controls. This clause relevantly provides:
The application of longitudinal placement controls is intended to:
• minimise the level of driver distraction in areas where greater concentration is required
• preserve sight distances
• retain a high level of traffic efficiency
…
Longitudinal placement controls for Advertising Devices within statecontrolled roads shall be in the form of:
• Device restriction distances to designated traffic situations and official traffic signs (see Appendix A).
18 Appendix A of the MRWA Guidelines contains a number of pictures at Fig 1 that illustrate, by use of different coloured zones, three types of restriction areas for advertising devices visible from State controlled roads other than a Freeway or Freeway standard road. The three types of restriction area are described in Fig 1 of Appendix A of the MRWA Guidelines as:
• Conflict Area Area where conflicts may occur with other road users;
• Device Restriction Area Within the road reserve; and
• Device Restriction Area Outside the road reserve. Subject to Local Government control and enforcement.
19 In relation to crash history, clause 3.1.3 of the MRWA Guidelines relevantly provides:
Further to the restriction on placement as outlined in 3.1.3.2 and in Appendix A of this guideline, further restrictions may apply due to the crash rate or crash history where:
• sections of the road on a carriageway basis have a crash rate higher than the critical crash rate (see 3.1.3.1)
• intersections have a vehicle crash history of three (3) or more Killed and Serious Injury (KSI) crashes in the last 5 years where one vehicle involved was approaching the proposed sign …
…
Where crash rates or crash history exceed the above criteria the following extra restrictions will be applied.
• For sections of road
• Advertising devices must be located clear of any sections of road which have an actual crash rate higher than the critical crash rate (see Appendix C).
• For intersections
• Increase the applicable intersection restriction distance 'd' by a factor of 2 for all diagrams as set out in Appendix A[.]
Stopping sight distance has been adopted as underpinning rationale in the determination of the restriction distance applicable to advertising devices located near a known conflict point on state controlled roads.
21 Following on from this is Table 3.1, which contains figures for working out distance 'd' and 0.6V(m) referred to in the illustrations in Appendix A.
Local Planning Scheme
22 It was argued in the hearing that a proposed amendment to the MRS, 'Amendment 1210/14 Rationalisation of Stirling Highway Reservation' (MRS Amendment 1210/14) was a matter to which the Tribunal should have regard in determining the relevant planning framework applicable to this review.
23 This argument was made on the basis that one effect of that amendment would be that, if allowed, the amendment would result in the deletion of the majority of the Primary Regional Roads Reservation on the site, save for a narrow 0.6 metre wide strip adjacent to the current highway frontage and a truncation adjacent to the corner of Stirling Highway and Clive Road. Mr Andrew Brian Jackson, a town planner employed by the respondent, was of the opinion that it would be appropriate for the Tribunal to also have regard to the matters that would be required to be considered if the part of the site on which the proposed sign is intended to be installed was largely within the local government scheme area rather than within the MRS reservation.
24 MRS Amendment 1210/14 had, at the time of the hearing, been endorsed by the then Minister for Planning, approved by the Governor and was sitting before Parliament. However, a Notice of Disallowance had been tabled in relation to the amendment and it was not in dispute between the parties that as a result, the amendment would not be able to be considered by the then current government prior to the election in March 2017.
25 There was some dispute between the planners in relation to what zoning the part of the site that would no longer be effected by the MRS reservation should MRS Amendment 1210/14 proceed would apply. The town planner called by the applicant, Mr Aaron Thomas Lohman, considered that there was a reasonable prospect that, having regard to WAPC's draft Central SubRegional Planning Framework, as the site is located within a corridor and within a station precinct, the future zoning of the site was most likely to be one that allowed relatively high density residential or mixed use development. Mr Jackson, on the other hand, considered that the likely future zoning of the site was medium density residential.
26 Ultimately, the Tribunal is not satisfied that there is sufficient certainty in relation to the ultimate adoption of MRS Amendment 1210/14 or the nature of the subsequent zoning and density coding of the majority of the currently reserved portion of the site that any significant weight can be placed on these potential changes at this point in time.
27 However, the Tribunal is satisfied that in considering orderly and proper planning for the locality, regard must be had to relevant provisions of LPS 3 as they apply to the remainder of the site, and to the majority of the land surrounding the site. The portion of the site that is not reserved is zoned Residential R60 under LPS 3 (see Exhibit 2).
28 The aims of the Scheme are provided at cl 1.6 of LPS 3, which relevantly provides:
…
(f) sustain the amenity, character and streetscape quality of the Scheme area;
…
(m) ensure that new development is compatible with the conservation significance and aesthetic value of heritage places and areas …
…
(p) ensure that development and the use of land within the district complies with accepted standards and practices for public amenity and convenience[.]
29 The objectives of the Residential zone are identified in cl 4.2.1 of LPS 3 to relevantly include:
(a) encourage residential development only which is compatible with the scale and amenity of the locality;
…
(c) allow for some non-residential uses where they are compatible with the amenity of residential localities[.]
Issues
30 The respondent identified, in its Statement of Issues Facts and Contentions dated 23 September 2016 (Exhibit 4), that the issues for determination in these proceedings were:
1) Would approval of the proposed sign present a risk to road safety for motorists or pedestrians?; and
2) Would approval of the proposed sign detract from the residential amenity of the locality?
31 The applicant agreed with this description of the issues for determination.
32 Although it is not immediately apparent from the way that the issues were framed, it was implicit, and the hearing proceeded on the basis that, the requirement to have regard to orderly and proper planning pursuant to cl 30(1) of the MRS required the Tribunal to consider, in relation to the issue concerning whether there was a risk to road safety, the consistency or otherwise of the proposed sign with the relevant policy documents, and if there was an inconsistency, to consider whether there was a good reason to depart from the policy(ies) in all of the circumstances. The second issue is effectively aimed at addressing the second element of the test posed by cl 30(1) of the MRS and the consistency or otherwise of the proposed development with DC 5.4 and LPS 3.
Safety
33 As indicated above, cl 3.3.1 of DC 5.4 notes that advertisements 'often compete' for the attention of those passing and states that they are 'not acceptable' if they 'interfere with sight-lines [or] distract drivers'.
34 Although the MRWA Guidelines is not the most clearly drafted document, it seems apparent, when reading it as a whole, that the device restriction zone is intended to be an area in which advertising signs should not occur.
35 The parties agree that the proposed sign is proposed to be placed 20 metres from the intersection of Stirling Highway and Clive Road, and is therefore within a 'Device Restriction Area Within the road reserve' for the purposes of the MRWA Guidelines.
36 The applicant submits that advertising signs have been approved within the Device Restriction Area previously and as such it is plain that the MRWA Guidelines can be varied.
37 In the Tribunal's view, it is not so much that the MRWA Guidelines can be varied, but rather, having identified that the proposed sign is inconsistent with this aspect of the MRWA Guidelines, consideration needs to be given to whether the proposed sign should be approved in all of the circumstances despite this inconsistency.
38 It is the applicant's submission that it has established, through the evidence of a suitably qualified expert, that the location of the proposed sign will not cause any road safety issue and is therefore appropriate.
39 The respondent submits that the Tribunal should follow the MRWA Guidelines unless there is a cogent reason to depart from them (citing Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634, at 644 - 645) and that in this case there is no such cogent reason. The respondent submits that the weight of the evidence does not allow the Tribunal to have confidence that the risk to safety posed by the proposed sign will be acceptable.
40 There was no dispute in relation to the relevant characteristics of the road in the vicinity of the site where the proposed sign is intended to be located. As stated by Mr David McTiernan, a civil engineer with over 25 years' experience as a road designer, traffic engineer and road safety specialist (Exhibit 10, page 3):
…
Stirling Highway functions as a local arterial road with a sign posted speed limit of 60km/hr. For several kilometres either side of the [site]. Stirling Highway is a fourlane, undivided carriageway with a painted median island separating opposing traffic lanes. …
The painted island in Stirling Highway is approximately 1.2m wide and is interspersed with concrete islands, acting as pedestrian refuges. Breaks in the painted median provide access into side streets along the length of the highway.
Two bus stops are located on the southbound kerbside lane in Stirling Highway [in the vicinity of the site]. The first is approximately 240m north of the site of the proposed development and the other 90m south of the site of the proposed development[.]
41 It was also not in dispute that there are two 'at grade' priority controlled intersections very close to each other in this vicinity.
42 The southbound carriageway of Stirling Highway in the approach towards the site is slightly inclined leading to a crest and a curve away just prior to the site. There are no turning lanes in this section of Stirling Highway.
43 The experts (Mr McTiernan and Mr Tony Shaw, a scientist with extensive expertise in Transportation Planning and Traffic Engineering) disagreed slightly about the degree of complexity of the road environment with respect to what a driver has to deal with to ensure safe driving and navigation past the site. Mr Shaw considered that the degree of complexity at this location was moderate. Mr McTiernan was of the view that it was of moderatehigh complexity, although he clarified at the hearing that he thought it was closer to the moderate level than the high level. There was no suggestion that at this location the road environment complexity was low. The Tribunal is satisfied that the road complexity should be considered as moderate.
44 An initial traffic report relied on by the applicant when the development application was lodged with the respondent, the KCTT Traffic Engineering Report (KCTT Report) stated that having regard to the historical (previous five year period) crash data for this section of Stirling Highway, crash rates for this area were significantly lower than the network average and as such, the existing sign does not represent a significant safety risk.
45 Mr McTiernan reviewed the calculations in the KCTT Report and determined that they were incorrect. It was his opinion that on the correct analysis, the historical crash rates for this location in fact exceeded the network average rates.
46 In his witness statement, Mr Shaw stated that he had reviewed the KCTT Report and agreed with the conclusion in that report, that the historical crash rates were lower than the network average. Mr Shaw also stated that he agreed with the statement in the KCTT Report that the lower than network crash rate in the vicinity of the sign would suggest that the existing sign is probably not a contributing cause of crashes.
47 However, after conferring with Mr McTiernan, Mr Shaw agreed that on the correct analysis, the historical crash rates for the location exceeded the network average. He did note that the exceedance was marginal, being 1.21 versus 1.20). Mr Shaw also agreed that crash rates do not provide an assessment of factors contributing to the cause of crashes. In light of this agreement, the Tribunal is not satisfied that there is any foundation for Mr Shaw's original statement that the crash rate in the vicinity would suggest that the existing sign is probably not a contributing cause of crashes in the area.
48 Mr Shaw also assessed the proposed sign against the recommendations in Austroads Research Report AP-R42013 'Impact of Roadside Advertising on Road Safety' published in January 2013 (Austroads Report).
49 In relation to dwell time of advertising content, Mr Shaw noted that the Austroads Report indicated that dwell time should take account of visibility distance, that is, the maximum distance from the sign at which the sign face becomes visible and the speed environment. These factors are assessed with the goal being to limit the number of message changes that drivers are exposed to. Mr Shaw noted that the Austroads Report stated that ideally the proportion of drivers who see a change should be much less than one. Mr Shaw assessed the criteria and stated that the intended dwell time of 40 seconds and the visibility distance of 672 meters meant that drivers will only see one change at most.
50 In relation to longitudinal placement of the sign, Mr Shaw noted that the Austroads Report recommended that advertising devices should not be located in such a way that they may interfere with the effectiveness of a traffic control device and should not be located so that they are visible at the approach to, or from, an intersection, pedestrian crossing, tram stop or in any location that is likely to be highly demanding of attention. Mr Shaw's comment was that the proposed sign is located where it is visible at the approach to an intersection; however the intersections were with minor roads and are not considered to be highly demanding of attention.
51 Mr Shaw was of the view that the proposed sign was otherwise consistent with the recommendations in the Austroads Report. In his final point of assessment against the Austroads Report, Mr Shaw noted the recommendation that all installations should consider the overall risk profile of the road environment in question and the driver demand of the road section. His assessment stated that:
The low crash rate adjacent to the location suggests an acceptable overall risk profile. The existing crash profile does not suggest any adverse effect on the existing static signage on driver behaviour. It is considered that the effect of the pro[po]sed replacement sign will not significantly change the risk profile (Exhibit 9, [13(p)]).
52 Mr McTiernan also assessed the proposed development against the Austroads Report. Mr McTiernan considered that the proposed sign did not comply with a number of the recommendations in the Austroads Report. In relation to a number of these recommendations he noted that conditions could be imposed on any approval to achieve consistency, however there were some aspects that he did not consider could achieve consistency with the Austroads Report recommendations. In particular, Mr McTiernan was of the opinion that the following 'road safety objectives/criteria' of the Austroads Report were not satisfied by the proposal. In summary, it was his view that:
1) Longitudinal placement of the proposed sign was in a busy, moderately to highly demanding complex road traffic environment. As a development designed to capture attention of drivers (to view advertising) the proposed development will compete for driver attention such that it may distract them from activities critical to safe driving and increase the risk of road crashes;
2) The vertical placement of the proposed sign meant that it falls within the hazard viewing window for drivers approaching the site for almost half the approach distance, adversely impacting on activities critical for safe driving;
3) The proposed dwell time of 40 seconds will result in a considerably larger proportion (42%) of drivers approaching the site observing a change of advertising content; and
4) Analysis of crash data within the viewable distance of the proposed development identifies that it may qualify for black spot funding, indicating that there is an existing road safety issue at this location that may potentially be made worse by the proposed development.
53 Upon conferral with Mr McTiernan, Mr Shaw agreed with Mr McTiernan's calculation of the proportion of drivers likely to view a sign change with a dwell time of 40 seconds. Mr Shaw also agreed with Mr McTiernan that for a portion of the time the approach geometry of the road would result in the sign being within the hazard viewing window. However, it remained his view that the proposed sign largely complies with the relevant recommendation in the Austroads Report because it is elevated above the height of vehicles, pedestrians and traffic control devices, but not so high that it draws the gaze away from the forward roadway.
54 Mr McTiernan and Mr Shaw did not change from these views in oral evidence. Mr Shaw maintained that while the crash rate for the vicinity marginally exceeded the network average, when you broke that data down by looking in particular at crashes on the side of the southbound carriageway from which the proposed sign will be viewable by drivers, there was no evidence of any road safety issue on this side of the carriageway.
55 Mr Shaw was of the view that, in any event, the casualty crash rate for the location is lower than the average casualty and critical casualty crash rates contained in the MRWA Guidelines.
56 Mr McTiernan agreed that the casualty crash rate for the location was lower than the average and critical casualty crash rates in the MRWA Guidelines. However, he had also analysed the casualty crash rate date against the data published in the Austroads Technical Report APT152/10 'Road Safety Engineering Risk Assessment Part 7: Crash Rates Database' published in 2010 (Austroads 2010). Based on this analysis, Mr McTiernan was of the view that the relevant section of Stirling Highway had a higher than average crash rate for fatal and serious injury crashes. When considering all crashes, this section ranged from just below average to above average rates. In his view, this analysis was indicative of an underlying level of risk along this section of Stirling Highway that is above that of other similar road and traffic environments.
57 Mr Shaw agreed that the crash rate on this section of road exceeded some rates reported in Austroads 2010 but noted that it is lower than some other rates reported in that document depending on how the attributes of the road are identified and combined. Mr Shaw maintained his opinion that the analysis using data from Austroads 2010 was not relevant. In his view, the relevant question is whether the crash data does not exceed the average and critical casualty crash rates in the MRWA Guidelines because this is the primary Western Australian policy.
58 In answer to further questioning, Mr Shaw agreed that the MRWA Guidelines serve as a guide for assessment of a sign proposal but that even if a proposal meets all of those guidelines a proposal could still present a safety risk. It was Mr Shaw's view that crash history is not the sole determinant of whether there is a safety risk. He stated that one needs to interrogate that data and see if it throws up an abnormal pattern and then look at that. Mr Shaw agreed that the formula in the MRWA Guidelines for calculating average and critical casualty crash rates is used in the MRWA Guidelines to determine whether further restrictions contained in cl 3.1.3 of the MRWA Guidelines apply in the situation. Mr McTiernan agreed with each of these propositions.
59 Mr Shaw agreed, upon questioning, that the relevant section of Stirling Highway did meet criteria for black spot funding. He went on to say that he could not agree it would qualify for that funding because a cost/benefit analysis is applied to all applications for such funding.
60 The Tribunal is satisfied that the proposed sign is intended to be located within the Device Restriction Area as defined by the MRWA Guidelines.
61 Based on the above identified matters agreed between the experts, the Tribunal is also satisfied that:
1) The proposed sign is to be located on a section of road of moderate complexity for the driver (including because of factors such as the curve of the road and the existence of intersections);
2) The crash data for this section of road shows that there is a history of crashes that is marginally higher than the network average (based on both sides of the carriageway being included);
3) The relevant section of road meets the criteria to apply for black spot funding;
4) For the driver on the southbound carriageway of Stirling Highway the proposed sign is, at least part of the time, within the hazard viewing window within the meaning of the Austroads Report;
5) If casualty data is analysed using data contained in the Austroads 2010 report, depending on which data is applied (having regard to which relevant road attributes are incorporated), the relevant section of road has higher serious and critical injury casualty rates;
6) The purpose of the formula for calculating casualty crash rates in the MRWA Guidelines is to determine whether further restrictions within the MRWA Guidelines need to be considered when assessing the proposed sign; and
7) In the case of the proposed dwell time of 40 seconds being applied to the proposed sign, will result in a considerably larger proportion (42%) of drivers approaching the site observing a change of advertising content.
62 When looking at whether there is a cogent reason to depart from the limitation in the MRWA Guidelines against advertising signs in the device restriction zone, it is the Tribunal's view that all of the above matters do not provide such a reason. Rather, they provide further support for requiring compliance with the limitation in this case.
63 The applicant submits that the Tribunal should accept Mr Shaw's opinion that, on a site specific analysis, despite the limited noncompliance with the MRWA Guidelines and the Austroads Report (to the extent, the applicant submits, that policy is relevant) the proposed sign does not pose an increased safety risk.
64 However, because of the acknowledged failures of Mr Shaw to, at least initially, correctly analyse the relevant data (not including the casualty crash rates based on the Austroads data which we did not consider applicable), the degree to which, in his written evidence Mr Shaw relied on these inaccuracies to support his opinion, and the failure to explain sufficiently how it is said that despite the changed analysis, the changed characterisation of the road complexity and other matters such as the changed position on whether or not the proposed sign came within the viewing hazard window, Mr Shaw's opinion in relation to the relevant road safety risks involved was not changed, the Tribunal is not persuaded it should prefer Mr Shaw's opinion on this topic.
65 Mr McTiernan appeared to the Tribunal to more thoroughly and accurately have prepared his initial witness statement with the consequence that Mr Shaw, appropriately given his position as an independent expert, acknowledged the correctness of Mr McTiernan's opinions in a number of significant areas. The Tribunal found Mr McTiernan's explanation of his reasoning for his opinion in relation to the risk to road safety that the proposed development potentially raised consistent and logical given the foundations for that reasoning identified by him.
66 For all of these reasons, the Tribunal is not satisfied that a site specific analysis has sufficiently identified that the proposed development would not pose any significant road safety risk to motorists and others in the vicinity.
67 The Tribunal is satisfied that the proposed development is not consistent with the objective of DC 5.4. The Tribunal is not satisfied on the evidence before it that the proposed development complies with cl 3.3.1 or DC 5.4. For the same reasons as listed in relation to the MRWA Guidelines, the Tribunal is not satisfied there is any cogent reason to depart from DC 5.4 in the circumstances of this case.
68 The Tribunal notes that there is insufficient evidence on which it can determine whether or not the existing advertising sign has had, or has, any adverse impact on road safety in this vicinity. The Tribunal is of the view that this issue is not relevant to the determination of the application before it. It would seem that there is an existing lawful use of the site for the purposes of the existing third party advertising sign. The approval of that sign occurred a significant time ago, and well before any of the current relevant policies were in place. While the existing lawful use cannot be taken away by this Tribunal, it is considered that the development proposal currently before the Tribunal must be determined on the basis of the current policy framework.
69 The Tribunal is not satisfied that there is a cogent reason in all of the circumstances to depart from the relevant policy requirements, which are based on the objective of preventing, as far as is reasonable, the creation of road safety risks by placement of advertising in or adjacent to road reserves.
Amenity
70 Two expert town planning witnesses were called by the parties in relation to the question of whether the proposed sign would have any adverse impact on the amenity of the locality. The applicant called Mr Lohman, a consultant with Rowe Group. The respondent relied upon Mr Jackson, the Shire's Manager of Development Services.
Relevant locality
71 Mr Lohman considered that the relevant locality for the purpose of considering amenity was limited to the site, the Telstra Telecommunication Exchange to north of the site and the residential developments facing Stirling Highway between Congdon Street (and Prospect Street on the other side) and Clive Road. He also included the Fire Station and commercial building on the north western corner of Stirling Highway and Congdon Street. It was his view that the residential developments in the area not facing Stirling Highway have a very different amenity and therefore should not be considered part of the relevant locality.
72 Mr Jackson was of the opinion that the relevant locality was the residential zoned area between Eric Street to the south of the site up to the town centre, and including development on both sides of the highway and not limited to the residential development facing Stirling Highway.
73 The definition of 'amenity' in cl 1 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) is 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
74 The ability to use the surrounding area for recreation, to access transport, shopping, et cetera, is part of the amenity of an area. The Tribunal considers that to take too narrow a view of the locality when assessing amenity and potential impacts would be to deprive the consideration of amenity of any true meaning. The Tribunal considers that Mr Lohmans' description of the locality, in terms of the north/south boundaries, effectively restricts the area to the properties from which the sign would be visible from within the property. The Tribunal considers this is too narrow an approach.
75 The relevant area should include those properties within a relatively close area whose amenity may be impacted as they come to and leave their properties for the purposes of recreation, transport, shopping et cetera. Obviously, to apply that notion too widely would, equally to an unnecessarily narrow approach, deprive the concept of assessing the amenity of an area of any real meaning. It is a matter of fact and degree in each case.
76 The Tribunal considers that Mr Jackson's description of the locality, so as to effectively include all of the residential zoned area between Eric Street and the town centre, including residential properties well away from Stirling Highway, is too wide.
77 The Tribunal was assisted in forming its view about the relevant locality by the site view conducted at the commencement of the hearing.
78 The Tribunal accepts Mr Lohmans' statement that the existing amenity is considerably different for those residential developments facing Stirling Highway in this vicinity than those well away from the highway. However, the direct effects of Stirling Highway do appear to extend, to a degree, past those residences directly facing Stirling Highway. For example, residential developments facing streets which connect with Stirling Highway share to some degree, depending on the distance from Stirling Highway, the same or substantially similar amenity. In addition, there would be, to differing degrees, an indirect impact on amenity for those living and working in the area who have to access Stirling Highway to come and go from those properties if the amenity of Stirling Highway itself is altered.
79 In light of the disparity between the experts in relation to the boundaries of the locality, and the difficulty in ascertaining any obvious distinction in applicable amenity factors (apart from the direct impacts of Stirling Highway on properties facing, or close to, Stirling Highway) that would assist to draw an appropriate boundary, it is difficult to draw a precise locality boundary in this case. The Tribunal is of the view that the degree of impact on amenity by way of the indirect impacts of Stirling Highway would decrease with increased distance from Stirling Highway because the further the distance the less likely a person is to walk to and along Stirling Highway. In addition, the further the distance from Stirling Highway the greater the proportion of the trip that is not on Stirling Highway becomes. The Tribunal considers that, in this case, which is focused on visual amenity, the preferable approach is to take an approximate midway point between the boundaries identified by the experts.
80 Doing the best it can, the Tribunal considers that it should accept that the locality extends to Eric Street to the south and to a distance approximately equivalent as the distance between the site and Eric Street in the northerly direction. In the east/west direction, the relevant locality should be taken as including the properties on both sides of Stirling Highway and extending a couple of blocks either side of Stirling Highway.
81 The Tribunal is satisfied that, because of the lack of any obvious and distinct boundary on the area affected by the applicable indirect amenity factors, in this case the experts' opinions in relation to existing amenity and potential impact on amenity, can still be appropriately understood when applying the Tribunal's determination of the relevant locality.
Assessment of impact
82 In summary, Mr Lohman described the existing amenity of the locality as affected by the following key elements:
• Stirling Highway and associated vehicular traffic;
• noise, light and odour generated by vehicular traffic;
• bright corporate colouring of the existing Auto Masters building and the commercial use of the site;
• the existing sign on the sign and its associated lighting;
• the adjoining Telstra Telecommunication exchange building;
• residential development to the east, south and west; and
• dispersed mature vegetation within both the public and private realms.
83 Mr Jackson did not disagree with this general description of the existing amenity but in his view, the character of the area was predominantly residential, with wellmaintained residential properties.
84 Mr Jackson was of the view that the proposed sign would not be consistent with the character and amenity of the locality. In his view, the intrinsic amenity of residential localities means that only signs that are small, simple, lowkey, well designed and static cause minimal impact on amenity. It was his view that large, elevated prominent, illuminated digital signs are characteristic of commercial, industrial and entertainment areas.
85 Mr Jackson was of the view that the existing sign on the site is anomalous and in stark contrast with the amenity of the area. He considered that the existing sign is the most dominant and prominent in the locality. In addition, the back of the roof sign and its support structure is exposed and clearly visible for the highway and footpaths when looking north as well as partially visible from Clive Road when looking east. It was his opinion that these views are unattractive and not consistent with the residential amenity. He noted that the existing sign is the only roof sign in the locality and is large, highly visible and illuminated. Mr Jackson stated that the proposed sign would also not be consistent, compatible or in harmony with the current and future residential character and amenity of the locality. He said that the proposed sign would introduce a heightened visual presence and be an increased distraction due to being a digital image, internally illuminated and, significantly, frequently changing. Mr Jackson stated that the proposed sign would be more noticeable and 'busier' than the existing sign.
86 The Tribunal is not satisfied that Mr Jackson has the relevant expertise to be able to say whether observation of a changing sign is more noticeable or perceived as busier by the ordinary observer. The Tribunal is not persuaded that Mr Jackson identified any other basis on which the proposed sign would have a negative impact on the existing or future amenity of the area.
87 Mr Lohman considered that amenity of the locality would not be significantly affected by the proposed sign because:
…
- • The proposed Sign is of a similar height and scale to the existing sign. The sign has been extant on the subject site since at least 1995 and therefore forms part of the existing character of the locality.
• The illumination of the Sign during nondaylight hours has historically occurred, and thus forms part of the character of the locality. It is understood from review of Lighting Impact Assessment prepared by Electro Light (page 350 of the S24 Bundle) that the LED illumination of the sign will not adversely affect abutting and adjoining properties.
• The existing mature vegetation screens the Sign from adjoining residential development (Lot 70 Stirling Highway and Lots 69 Prospect Place) to the east of the subject site.
• Electro Light undertook an assessment of light spill against AS4282-1997 Controls of Obtrusive Effects of Outdoor Lighting (AS4282-1997 disregarding the screen vegetation adjacent to Lot 70 Stirling Highway (the nearest affected residential property) and determined that compliance with AS4282 was achieved.
• The amenity of the land adjacent to Stirling Highway is affected by vehicular movements associated within the Highway. This includes impacts from noise, light and odour.
• Stirling Highway is identified as a 'corridor' in the Planning Framework which evidences a higher level of activity and associated impacts. Thus, the expectation of amenity in such a locality is lesser.
• The Review Site, Telstra Telecommunications Exchange, Fire Station and the land subject to Additional Use A7 under TPS3 form a cell of nonresidential development along the western extent of Stirling Highway to the north and south of Congdon Street.
(Exhibit 12 at [48]
88 Mr Lohman considered that the effect of the changing nature of the proposed sign will modify the current amenity of the locality, as the cycling of advertisements will create different visual conditions than currently experienced with the existing sign. Mr Lohman stated that based on his review of the site at night, he considered the site and the immediate vicinity is relatively well lit because of street lighting and regular movement of vehicles along the highway. Because of this, it was his view that the transition of advertising during night hours is unlikely to significantly impact on amenity. Mr Lohman did not explain why it is that the ambient light levels mean that the changing nature of the advertising content will not impact on amenity. The Tribunal is not satisfied that there is any understandable, logical link between the two factors. The Tribunal is not satisfied that Mr Lohman has the relevant expertise to express an opinion in relation to whether the different visual conditions would attract attention so as to have an adverse impact on amenity.
89 The Tribunal is therefore not able to accept Mr Lohmans' conclusion on this issue.
90 The Tribunal is satisfied that both expert town planners considered that the changing nature of advertising content is likely to have an impact on visual amenity of the locality. The Tribunal is not satisfied there is any sufficient evidence before it to determine whether that impact is, or is not, likely to be a negative one.
Illuminance and whether the proposed sign has obtrusive effect
91 Mr Ryan Shamier also gave evidence that is relevant to consideration of the issue of amenity. Mr Shamier is an electrical engineer with a Masters of Design Science (Illumination Design) with experience in the field of lighting and lighting design. In the course of his career so far, he has carried out over 100 lighting impact assessments for digital and illuminated signage around Australia. Mr Shamier's evidence was not contradicted by any expert called by the respondent and his evidence was not shaken or undermined by any questioning during the course of the hearing. The Tribunal is satisfied that Mr Shamier has explained his reasoning and has provided sufficient foundation for the opinions he expressed. The Tribunal has no reason not to accept Mr Shamier's evidence, in so far as he expresses opinions within his area of expertise, and therefore, based on his evidence, the Tribunal finds the following:
1) Luminance is a measure of brightness of a light source. It is the measure of the luminous intensity per unit area of light travelling in a given direction. The unit of measurement for luminance is candela per square metre (cd/m²);
2) Light spill into residential properties is measured in illuminance. Illuminance is the luminous flux arriving at a surface divided by the area of the illuminated surface;
3) Computer modelling of the proposed sign and the surrounding environment showed that, assuming:
a) the surrounding area is classified as a zone 3 area (with generally medium off street ambient lighting such as in a small or medium shopping or commercial centre);
b) the maximum luminance produced is as specified (that is, at various levels of maximum dimming levels between 100% and 4.3% at different times of the day as identified in the assessment);
c) assuming no screening foliage is present between the sign and the nearest habitable window surfaces (that is, worst case scenario) and
the proposed sign would be compliant with all the relevant requirements of AS 42821997 Control of the Obtrusive Effects of Outdoor Lighting (AS 4282);
4) There is currently no Australian Standard outlining the maximum luminance of illuminated signage. AS 4282 outlines the maximum limits for spill lighting based on what a person is reasonably expected to tolerate when adjacent to a lighting installation (obtrusive light spill). Although illuminated signage is specifically excluded for the scope of AS 4282, Mr Shamier is of the view that the limits in that standard provide the best benchmark available for assessment of the obtrusive effects of advertising signage and his assessment was therefore against that standard;
5) Illumination from existing street lighting, commercial buildings, illuminated signage and traffic headlights all impact the surrounding area;
6) The MRWA Guidelines recommend a maximum night time luminance limit of 300 cd/m². Mr Shamier undertook a detailed assessment of the site and is of the view that a maximum luminance limit of 350 cd/m² for night time before 11 pm and 260 cd/m² after 11 pm is appropriate;
7) Digital LED billboards of the type intended to be used for the proposed sign typically have a restricted viewing angle of 25 degrees above and 40 degrees below the vertical plan and light spill is not visible outside of these angles. However, the nearest residences are within the proposed sign's viewing angles;
8) The brightness of digital LED billboard signs decreases as the viewer moves to the side of the sign because the LED lights are recessed into the screen;
9) A digital LED billboard sign will generally provide sharper or more crisp images than a conventional billboard sign;
10) The proposed sign will not cause any increase in obtrusive light spill as compared to the existing illuminated sign at night time; and
11) The proposed sign would not materially impact the amenity of residential properties on Stirling Highway in the vicinity of the sign or on road safety on the basis of obtrusive light spill.
Determination of amenity impact
92 On the available evidence, the Tribunal is not satisfied that there would be any impact on amenity caused by the bulk and scale of the proposed sign given the substantially similar bulk and scale of the existing sign.
93 Based on the uncontradicted evidence of Mr Shamier, the Tribunal is not satisfied that the illumination aspect (in terms of obtrusive light spill) of the proposed sign would cause any amenity impact in the circumstances of this case, and in particular where there is an existing illuminated sign in the area.
94 The Tribunal accepts the agreed position of Mr Jackson and Mr Lohman that the changing nature of advertising content of the proposed sign is likely to have an impact on the visual amenity of the area. The Tribunal has no sufficient evidence before it to determine whether that impact would be a negative one.
95 Based on Mr Shamier's evidence, the Tribunal wonders whether or not the sharpness or crispness of a digital sign as compared to a conventional billboard, particularly if combined with the rapidly changing nature of the content of a digital sign, would have any impact on the degree to which the proposed sign would attract the attention of people within the locality as compared to the existing sign. Given that, by their very nature, advertising signs are designed to attract attention, the Tribunal considers this factor may have some potential to have an impact on amenity.
96 Based on these findings, the Tribunal is not satisfied that the proposed sign will have a negative impact on the visual amenity of the locality. However, in the absence of evidence sufficient to determine the nature of the impact on visual amenity of the changing nature of advertising content in the proposed sign, and potentially of the sharper or crisper nature of digital images within the proposed sign, the Tribunal is also not satisfied the proposed development will not have negative impact.
Conclusion
97 For the reasons outlined above, the Tribunal has determined that the correct and preferable decision in relation to this application is that the proposed development should be refused. The proposed development is inconsistent with the requirement in the MRWA Guidelines that an advertising sign should not be placed within the device restriction zone. It is also inconsistent with the road safety aspects of DC 5.4. In the circumstances of this case, there is no cogent reason, and the Tribunal is also satisfied that it would not be appropriate, to depart from these policies. The Tribunal is also unable to be satisfied that the changing content of advertising on the proposed sign would not have a negative impact on the amenity of the locality. The Tribunal is not able to determine whether the projected sign would be inconsistent with the amenity provisions of DC 5.4 and with the objectives for the surrounding residential zone as stated in LPS 3.
Orders
The Tribunal makes the following orders:
1. The decision of the respondent, on 27 April 2016, to refuse the applicant's request for development approval to remove an existing sign located on the roof of a building at 443 Stirling Highway, Cottesloe and install a new electronic display sign on the roof of the existing building the proposed development is affirmed.
2. The application is dismissed.
I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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