Outdoor Systems Pty Ltd v Georges River Council and Roads and Maritime Services

[2017] NSWLEC 1505

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Outdoor Systems Pty Ltd v Georges River Council and Roads and Maritime Services [2017] NSWLEC 1505
Hearing dates:	14, 15 ,16 24 and 27 April 2017
Date of orders:	03 October 2017
Decision date:	15 September 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See [99]
Catchwords:	MODIFICATION – conditions of development consent for advertising sign –digital display – change to dwell time – impacts on driver and traffic safety – driver distraction
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy 64 Transport Corridor Outdoor Advertising and Signage Guidelines 2007 Draft Transport Corridor Outdoors Advertising and Signage Guidelines
Category:	Principal judgment
Parties:	Outdoor Systems Pty Ltd (Applicant) Georges River Council (First Respondent) Roads and Maritime Services (Second Respondent)
Representation:	Counsel: A Galasso SC (Applicant) M Staunton (Second Respondent)   Solicitors: McCabe Lawyers (Applicant) Lindsay Taylor Lawyers (First Respondent) Hunt & Hunt (Second Respondent)
File Number(s):	2016/344564

Judgment

The proposal

1. The applicant seeks approval under s96 (2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify two conditions of the development consent 30/97 (as modified) granted by the Council on 10 July 1997 (1997 consent) for a digital sign located on top of the portico of the building at 8 -10 Princes Highway, Kogarah (the Site).

2. The conditions at issue control the timing of the change of the digital display. They currently provide as follows:

(3) Static Display

Each advertisement shall be displayed in a completely static manner, without any motion, for the approval dwell time of 24 hours.

(4) Display Change

The display change shall occur in the early hours of the morning.

3. The applicant requests the following modifications:

1. Variation of condition (3) to reflect a 15 second dwell time, and

2. Deletion of condition (4).

The location of the sign

4. The sign is located within the safe intersection sight and stopping sight distance of both Marshall Street/Rocky Point Road and the Princes Highway /Rocky Point Road intersections at Kogarah.

5. The sign is positioned on the second level of a two-storey commercial building that faces north-east at the intersection of the Princes Highway and Rocky Point Road. The intersection is controlled by traffic lights. There is an RMS operated variable message sign (VMS) located 110m north of the sign.

6. North of the site is a school, a church and hospital on one side and two schools and TAFE on the other. A sign posted speed limit of 60km/h generally applies, however, a 40km/h school zone operates during standard school zone times (8am to 9.30am – 2.30pm to 4pm) on school days. Marshall Street is a lower order street with school frontage on the north and residential frontage to the south. It also has a 40km/h school zone operating for two school frontages. The 50km/h general urban speed limit applies outside school zone times. The figure below illustrates the location of existing sign.

RMS Concurrence

7. As the sign is 8.26m above ground, exceeds 20m2 and is located on a classified road the Council decided the application should be assessed under State Environmental Planning Policy 64 (SEPP 64) and that the Roads and Maritime Services of New South Wales (RMS) had a concurrence role in the case: cl18 of (SEPP 64).

8. The Council referred the application to the RMS for its concurrence on 24 October 2016.

9. However, before the RMS could respond to the Council the applicant appealed the matter to the Court on a ‘deemed to have refused’ basis pursuant to s97AA of the EPA Act. It was only after the lodgement of the appeal did the RMS write to the Council to advise that it would not support a variation of the dwell time. The RMS correspondence to the Council dated 29 November 2016 states:

“Roads and Maritime advises that it would not support a minimum dwell time of 15 seconds or provide its concurrence to the sign under Clause 18 SEPP 64 in the proposed form. Roads and Maritime previously provided its concurrence to a 24 hour dwell time as this mitigates the risk of drivers observing the changes the sign display and thus reducing distractions at this critical decision point”.

10. Given the decision of the RMS the Council formed the view that it was could not approve the modifications sought because of s96 (2) (b) of the EPA Act which provides:

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent is modified relates is substantially the same development is the development which consent was originally granted and before that consent is originally granted was modified in brackets if it all into bracket, and

(b) it has consulted with the relevant minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms and approval proposed to be granted by the approval body and that minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent.

11. On 21 December 2016 the RMS applied and was granted leave by the Court to be joined as the second respondent in the proceedings. The application for joinder was not opposed.

12. For the sake of completeness I note that the appeal does not raise any jurisdictional issue as to whether the development is “substantially the same development”: s96 (20 (a) (T14/3/2017 p6 L45).

The Issues

13. The RMS is concerned about the impacts of the reduced dwell time on driver and traffic safety. It contends that the proposal fails to address the considerations set out in Schedule 1 of SEPP 64; and, does not comply with the considerations set out in the relevant Guidelines and the draft Guidelines.

14. Put simply, the RMS contends that the shorter dwell time reduces the safety of the public road (being primarily south bound lanes on the Princes Highway between the intersections of South Street and Rocky Point Road); and, at the intersection of Marshall Street and Rocky Point Road. It also reduces the safety for pedestrians or bicyclists in the vicinity of the sign.

Statutory framework

15. The Court has jurisdiction under s39 (6) of the Land and Environment Court Act 1979 to determine this application in place of the Council and the RMS. In that regard, I must assess the application under SEPP 64 and the relevant Guidelines and also give appropriate consideration to the 2015 Draft Guidelines.

16. Clause 17 of SEPP 64 is relevant and provides:

(3) The consent authority must not grant consent to an application to display an advertisement to which the clause applies unless:

(a) The applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts,

17. The assessment criteria within Schedule 1 SEPP 64 applies to new signs or as is the case at hand new impacts arising from changes to existing signs. In this case a particular focus of the evidence was on criteria under the heading 8 Safety:

8 Safety

Would the proposal reduce the safety of any public road?

Would the proposal reduce the safety from pedestrians or bicyclists?

Would the proposal reduce the safety pedestrians, particular children, by obstructing site lines from public areas?

18. Relevantly, cl18 of SEPP 64 provides :

(3)    In deciding whether or not concurrent should be granted, the RTA must take into consideration:

(a) The impact of the display of the advertisement on traffic safety, and

(b) The Guidelines

The Guidelines referred to in SEPP 64 are:

Transport Corridor Outdoor Advertising and Signage Guidelines (the Guidelines 2007)

19. These Guidelines (July 2007) set out the best practice for the planning and design of outdoor advertisements in transport corridors.

20. At 3.2 the Guidelines set out road safety assessment criteria which includes:

1. Sign location and design;

2. Variable messaging signs; and

3. Illumination and reflectance

21. The parties’ experts agree that the 2015 Draft Guidelines are also a relevant consideration:

Draft Transport Corridor Outdoors Advertising and Signage Guidelines (the Draft Guidelines)

22. These Draft Guidelines, dated December 2015, set out revised provisions relating to road safety. They include new criteria that relate specifically to digital signage. The Draft Guidelines state that the RMS Risk Assessment Matrix should also be considered.

23. The relevance of the Draft Guidelines in the assessment of applications for electronic and digital signage on transport corridors is underlined in the correspondence dated 11 December 2014 from Marcus Ray, Deputy Secretary Planning Services (at Tab 6 exhibit 2). The correspondence states” The Department is close to finalising this review (referring to the draft Guidelines)... In the meantime, applications for electronic and digital signage on transport corridors will be assessed by the Department against the draft Transport Corridor Outdoor Advertising and Signage Guidelines, where these uses are permitted”.

24. In any event the exhibited draft is relevant under s79C of the EPA Act.

2013 Ausroads Research Report – Impact of Roadside Advertising on Road Safety

25. The RMS also relies on the 2013 Ausroads Research Report – Impact of Roadside Advertising on Road Safety to support its position that this is the wrong location for a sign with a dwell time of 15 seconds (Folio 140 -141 Tab 4 exhibit 2).

26. This report was prepared before the latest Draft Guidelines and the RMS was one the eleven member organisations involved in the preparation of the report. The RMS’s experts who gave evidence in the proceedings are heavily involved in this study.

27. Amongst other things the report analyses a number of international studies about driver distraction and crash data. And, while the study reports that “There is compelling evidence that distraction is a major contributor to crashes” and “The studies that have been conducted show convincingly that roadside advertising is distracting and that it may lead to poorer vehicle control” it also acknowledges that “…the evidence is presently only suggestive of, although clearly consistent with, the notion that this in turn results in crashes.”

28. Moreover, it concludes that “…Studies providing direct evidence that roadside advertising plays a significant role in these distraction based crashes are currently not available “(folio 1115 Exhibit 2 tab 4).

29. The applicant contends that this report is not a relevant consideration in my assessment of this application under s79 C of the EPA Act. However, if I consider that it is relevant it should be given little weight.

Ausroads Guidelines

30. Ausroads has published national model assessment criteria to assist in evaluating the potential road safety impact of digital billboards proposals. Based on national and international research and best practice, the model guidelines include criteria similar to that contained in the SEPP 64 guidelines. However, the Austroads guidelines contain additional considerations important to evaluating road safety impact of digital billboard proposal based on:

Sign and advertising content design

Sign placement relative to the road and traffic environment.

31. Mr McTiernan used the model assessment criteria contained in the model guidelines and presented his results in two tables (exhibit 5) in support of a refusal of the application (Tab 2 exhibit 2 folio 140). Again, the applicant submits that this modelling is of no relevance and should be given no weight in my assessment of the application.

Background

32. The Council’s Statement of Facts and Contentions filed on 7 February 2017 (SOFC) sets out the background facts, the statutory controls and the original contentions between the parties.

33. It records that before the Council granted approval to the original signage in 1997 it referred the DA to the Roads and Traffic Authority (RTA) (now the RMS) for comment. At that time, the RTA did not object to the development subject to the Council considering the following matters:

“That the signs are not prejudicial to traffic safety as outlined in the Roads and Traffic Authority’s Interim Guide to Signs and Markings’ Section 3.6 (July 1988):

no obstruction or interference with road traffic signs

no obstruction or interference with drivers available sight distance

they do not give instructions to traffic by the use of words Halt, Stop or other directions or imitate traffic signs, as stated in the Interim Guide”

34. The Council incorporated RTA’s comments in condition 5 the 1997 consent. The1997 consent was then activated.

35. Between the period 2006 and 2013 the sign’s dimensions and supporting structure were varied (apparently without development consent or a modification application). The sign was also converted to a static sign.

36. It was not until 1 December 2014, or thereabouts, that the applicant installed the electronic billboard in its current form. The SOFC records that between 1 December 2014 and 26 February 2015 the sign operated with a 10 second dwell time. During this time the SOFC records that the sign was investigated by the RTA; and the Council, for possible breaches of conditions of development consent.

37. On 24 February 2015 the Council issued an Order under section 121B the EPA Act in respect of compliance with SEPP 64 and other matters.

38. According to the SOFC on 26 February 2015 the sign was switched off temporarily. On 23 March 2015, the applicant commenced proceedings appealing the Section121B Order.

39. On 11 September 2015, the applicant sought approval under s 96 (2) of the EPA Act to modify the original consent to retrospectively approve of the structure as built. The modifications included;

• A change in the proportions of the digital signage to achieve a signage panel with an advertising area of 7.7 m x 1.94 m and a total area of 14.938 m²;

• The establishment of an overall structure including backing frame of 8.265m x 3.38m.

40. This application was referred to the RMS for its concurrence. However, this time in granting concurrence the RMS requested that two additional conditions should be imposed on the 1997 consent:

(3) Static Display

Each advertisement shall be displayed in a completely static manner, without any motion, the approval dwell time of 24 hours.

(4) Display change

The display change will occur in the early hours of the morning.

41. On 7 December 2015, the Council approved the modification subject to its original conditions and conditions 3 and 4 as requested by the RMS.

42. The sign then began operating with a 24 hour dwell time.

43. On 6 October 2016, the applicant lodged the modification application, the subject of this appeal, to vary conditions 3 and 4 of the 1997 consent.

Site View

44. The hearing commenced with an extensive view of the site and its environs. It also included an inspection of several other electronic signs at locations in Mascot and near the airport. The parties’ experts attended the view and gave oral evidence at that time.

Expert evidence

Road Safety Performance

45. The experts who addressed driver safety were David Mc Tiernan (RMS) and Craig McLaren (applicant). Their individual statements of evidence are their CV’s are exhibits 5 and F. They also prepared an agreed statement - exhibit K.

46. Relevantly, both traffic experts agree that they are not experts in driver distraction. Although, Mr McTiernan said that he believes that he is competent to speak about elements of driver distraction as it relates to his work undertaking site evaluations with Professor Regan in the Context of developing the Activities Critical for Safe Driving framework.

47. The focus of their evidence was on an assessment of the signage against the sets of criteria in the Guidelines and the Draft Guidelines and the RMS Risk Assessment Matrix.

48. Both traffic experts agree that the existing sign is visible to approaching drivers from approximately 440m (from the overhead pedestrian bridge, but is not legible at this distance). They also agree that the existing sign is legible to approaching drivers from a distance of about 190 to 150m, however, this is subject to the text size and sign design.

49. The existing sign is located within the safe intersection sight and stopping sight distance of both Marshall Street/Rocky Point Road and the Princes Highway/Rocky Point Road. It is visible to westbound drivers from the stem of the Marshall Street /Rocky Point Road. It is visible to northbound drivers from the stem of the Rocky Point Road/Princes Highway intersection.

50. The sign backdrops the traffic control, VMS and directional sign for approaching drivers at different times and to varying degrees. The sign is constantly in the forward view for approaching drivers from 440m to approximately the holding line at the intersection with Rocky Point Road. The sign is then in the peripheral and side view of drivers from the holding line to a point at the sign, a distance of approximately 50m.

51. Drivers are not able to view the billboard from a position at approximately in line with the splitter island/secondary lantern at intersection of Princes Highway/ Rocky Pint Road, as a result of the elevation of the sign and the driver’s line of sight is through the roof of the car.

52. The traffic experts agree that the activities critical for safe driving are listed in Tables D1 and D3 (McTiernan), noting that these distances are about the same as in Annexure A (McLaren). Therefore, the distance of concern for evaluating the impact on road safety should be from this range.

53. However, they disagree about the change in the level of risk as a result of the proposed change in dwell time.

Mr McLaren

54. According to Mr McLaren the sign meets all of the relevant objectives of SEPP 64 and the associated Draft Guidelines (p3 exhibit F). In his assessment the sign qualifies for a 15 seconds dwell time with required static operation during school zone hours. The 15 minute dwell time was nominated by Mr McLaren following the road safety evaluation he carried out on 8 April 2015. In short, the nominated dwell time is based on the driver approach from the north, being southbound, and the site distance to the sign of 250m on approach to the pedestrian traffic lights and his speed limit at 60km/h (T14/3/2017, p9 L 11-25).

55. For that reasons the application is for a minimum 15 seconds static duration for each image noting that the display will be switched to fix during school time.

56. In all other respects he does not believe that there should be any limitation on the operation of the sign which is expressly contrary to the design Guidelines provided in both the SEPP 64 and the RMS approved Draft Guidelines. While the RMS Assessment Matrix is not publicly available he has conducted an assessment against that criteria (Annexure H to exhibit F) and considers that the sign satisfies the criteria A and C in that the sign is perpendicular to the direction of travel and does not interfere with the effectiveness of traffic control devices. While the sign is located at a decision point drivers within the stopping sight distance of the intersection are subject to only one decision – to stop at the red light or to continue through the intersection on a green light or amber light. Considering the sign location, within the driver’s cone of vision such that the sign and the traffic signals can be considered simultaneously, there is no unacceptable impact to road safety.

57. Based on his assessment drivers turning left from Rocky Point Road and merging pass immediately below the sign and are within the immediate cone of vision of drivers looking at the sign. There is a give way sign for merging traffic at this point. While the sign is visible from the Marshall Street approach to Rocky Point Road drivers approaching from this direction will be looking to the right to check for oncoming traffic and will not have the sign in their field of vision when they decide to enter the intersection.

54. In support of an approval of this application Mr McLaren raises the following points:

• The sign is behind the traffic signals such that the driver’s view of the traffic lanterns cannot be materially obstructed.

• The sign is positioned such that drivers would not move their head to see the sign.

• There is a low scale of signage, in terms of regulatory, guide or advertising, in the surrounding area such that there is no clutter of signage.

• The traffic speeds were surveyed over a period of 4 weeks between 21 January 2017 and 17 February 2017 and the results in Table 1 (p4 exhibit F) record that the measured speeds along the Princes Highway southbound are noticeably below the speed restriction of 60km/h which Mr McLaren said indicates an urban environment in which drivers are at a high level of attentiveness and are expecting to slow or stop. The AUSROADS “Guide to Road Design “ indicates that drivers in this context (high expectancy of stopping, restricted speed areas, built up areas with high traffic volumes) have a faster reaction time. Based on the urban environment, the proposed 15 seconds dwell time, a five second increase on the 10 seconds dwell time prescribed by the draft Guidelines, is appropriate.

• It is agreed that the sign is visible from a distance of 300m. However, the size of the sign makes it illegible at this distance and does not become legible until approximately half of that distance from which point the speed restriction does not change, the pedestrian crossing has been negotiated and merging is restricted by a solid white line that commences 140m from the sign. Furthermore, the sign is not visible at the entry point to the car wash as suggested. The remaining decision, whether to stop or continue through the intersection is not interfered with in that the traffic lanterns are not obscured by the sign and the driver’s cone of vision will include the lanterns when looking at the sign.

59. Furthermore, he has reviewed the historical crash data for the last 5 years and there is no basis in terms of road safety incidents to suggest that this is a reason to refuse the modification (p26 exhibit F).

60. In the ultimate, Mr McLaren is of the opinion that the level of risk associated with a 15 seconds dwell time is no different to the current situation i.e. it is and remains a low risk to road safety performance.

Mr McTiernan

61. Mr McTiernan is of the opinion that the change in dwell time will significantly increase the exposure of approaching drivers to changes and multiple changes in advertising content and that this increases the risk to road safety performance to an unacceptable level.

62. That said, he agreed (exhibit K) that a 15 second dwell time over 250m visible distance will likely result in all drivers potentially seeing a change in the advertising display.

63. A 15 second dwell time over 300m visible distance will result in all drivers potentially seeing a change in the advertising display and an estimated 20 % of drivers seeing the changes in advertising content.

64. A 15 second dwell time over a distance of 150m legible distance will likely result in approximately 60% of drivers seeing a change in the advertising display.

65. A 10 second dwell time over 150m legible distance will likely result in approximately 90% of drivers seeing a change in the advertising display.

66. A 30 second dwell time over 150m legible distance will likely result in approximately 30% of drivers seeing a change in the advertising display.

Driver Distraction

67. The experts engaged by the parties to address the driver distraction contentions were Carolyn Samsa and Professor Regan. Ms Samas‘s statement of evidence is exhibit G. Professor Regan’s statement of evidence is exhibit 4. These experts joint report prepared on 14 March 2017 is exhibit J.

68. Ms Samsa is a registered psychologist with qualifications in Psychology (Honours) gained from Western Sydney University in 2002. She is also a Level 3 Road Safety Auditor. According to Ms Samas’s statement of evidence (exhibit G) she has 14 years’ experience in road safety. Five of those years were spent working in various positions within the NSW centre for road safety at the RTA. The last position she held was Acting Senior Manager in the impaired road safety area, which covered drink and drug driving, driver fatigue and driver distraction. Ms Samas also has spent 9 years advising industry associations representing outdoor advertising where she lead the regulatory affairs portfolio – including the issue of regulation for outdoor advertising signs and their potential impact on driver distraction. For the last seven years Ms Samas has worked as a private consultant for both government and non-government organisations.

69. Ms Samas said that she has developed a methodology for the first on road research study in Australia exploring driver eye movements towards outdoor advertising signs in consultation with NSW, VIC and QLD road authorities.

70. In 2015, Ms Samas authored a peer reviewed research paper titled “ Digital billboards ‘down under’ Are they distracting to drivers and can industry and regulators work together for a successful road safety outcome? “ which was presented at the Australian College of Road Safety’s 2015 conference and the 4th International Driver Distraction and Inattention Conference in 2015. Although funded by OMA she confirmed that the opinions were own.

Ms Samas

71. Ms Samas is of the opinion that the sign will not have significant adverse impacts on driver safety with a reduced dwell time of 15 seconds for the following reasons:

72. There are three other digital billboards that have been approved and are operational at signalised intersections within Sydney basin all have dwell times of approximately 10 seconds and Ms Samas is not aware of any reported incidents of drivers being distracted by these signs.

73. The Draft Guidelines (2015), which are designed to outline “best practice”, state that a dwell time for a digital billboard along a 60km /h road ( as is the case with the sign in question) can be 10 seconds. Ms Samas is unclear what rationale/best practice evidence is behind the 24 hour dwell time which is considered acceptable to the RMS.

74. The proposed dwell time of 15 seconds in this case is slightly more conservative than the 10 seconds permissible in the draft guidelines. There have been no reported crashes since the sign was converted to the digital billboard format that it is currently – since 2014. This includes the short 3 month period in which the digital sign was operating with a 10 second dwell time from December 2014 – February 2015. Since a crash is the worst case scenario of a driver being distracted, if the digital sign was distracting drivers at this critical decision making point, it would be expected that more crashes would occur in the vicinity of the sign.

75. The eye tracking data from her research studies does not support the RMS‘s contention that a reduced dwell time will increase the likelihood that a driver’s attention and vision will be diverted away from the driving task for an extended period of time, impairing the driver’s ability to perform the activities critical for safe driving and therefore increasing the risk of crash.

76. Ms Samas’s research does not support the RMS’s contentions that “more drivers seeing the sign change equals the potential for more distracted drivers” because there are a large number of instances in the referenced material where drivers did not look at the digital billboards at all. Ms Samas explained in some detail the on road study she authored in Brisbane – the first of its kind in Australia – that actually looked at digital billboards signs as they operate here with a 10 second dwell time, as opposed to signs occurring in the US that may or may not have dwell times of similar durations as the ones we have here in this country. She said that her study looked at three types of signs, digital signs, static billboards and on-premises signs, and the aim of the study was to explore the characteristics of their fixations and compare that to the driving performance. Ms Samas included two performance measures; vehicle headway and also how far the car moved within the lane, which is called lateral deviation. Both of those measures have been shown in the literature to be indicators of driver distraction. So, the route was conducted in Brisbane, it was conducted there because there were a number of billboards signs in that state more than anywhere else and four were able to be included in the study. What the study found was that there was no difference in fixations between both static and 10 second dwell time digital billboards. In terms of driver performance, there was no significant difference in vehicle headway that is how far drivers are apart from one another. And, while there was a difference in how much the vehicles veered within its lane in the presence of digital billboards Ms Samas said it remains unclear from the research at this point how much the car moves outside of its lane due to natural or normal deviation which occurs with driving or not. While she conceded that the study had a number of limitations (for example it did not include younger or older drivers, was held in off peak hours (T15/3/2017 p78 L25-45). Ms Samas told the Court that her study has been peer reviewed for the Australasian Road Safety Conference in 205 and the International Driver Distraction conference.

Professor Regan

77. Professor Regan is also a highly qualified psychologist and transport safety specialist with more than 20 years’ experience as an academic, researcher, research manager and government policy maker.

78. Professor Regan is of the opinion that digital billboards draw longer visual glances than static (poster style billboard). He referred to generally international scientific literature in support of his opinion that digital billboards cause drivers to fixate on them for long periods of time and that behaviour increases crash risk.

79. According to Professor Regan the billboard at issue in this appeal is sited at a complex site, with a high workload, and a location requiring many activities critical for safe driving –which likely leaves little spare attentional capacity available to safely attend to the billboard. For that reason, it is his expert opinion that the existing digital billboard already poses a crash to drivers who approach and pass it.

80. In his assessment the reduced dwell time is likely to increase crash risk in 4 ways:

• Increased likelihood of attentional capture.

• Increased likelihood of sustained attentional capture.

• Increased likelihood of distraction, because changes in message content will occur at times of day when there are more activities critical for safe driving to perform.

• Increases proportion of drivers who are exposed to at least one change in message on billboard (from almost 0 to 100%).

81. Professor Regan is also of the opinion that the proposed reduction in dwell time for the digital billboard from 24 hours to 15 seconds has potential to increase the likelihood of at least 7 discernible crash types occurring on the approach to the billboard. The psychological mechanisms by which attention may be captured and sustained by the increased number of changes are likely to increase crashes occurring from this increased visual and cognitive distraction.

82. Professor Regan said that he sits on several editorial boards and had closely read Ms Samas’s research. He was of the opinion that the limitations in her research were a concern particularly her collapsing of data across high and low density traffic segments. This means that the impact that a digital billboard may have had in a low or high workload environment could not be discerned. You are sort of averaging these environments. But more importantly, he said that Ms Samas wasn’t comparing oranges with oranges. He said that you can only make a judgment that a digital billboard was more distracting that static billboard if you can say that the environments in which each of those billboards were situated was the same. In short there was no control in her study.

83. Despite that criticism Professor Regan did think that it was relevant that she found that standard deviation of the lateral position was higher than normal. Green from the University of Michigan had said that it is normal at about .2 of a metre and Ms Samas had found standard deviation at .38 of a metre – that is a car drifting out of the lane more in the presence of a billboard than when a billboard wasn’t there.

84. While Professor Regan accepted Ms Samas ‘s conclusion that drivers are fixated for most of the time on the road ahead when driving for the most of the time he still believes that they are cogitatively distracted. He said Ms Samas’s study omitted to assess that impact. That is when you see a billboard and keep thinking about it. Her study recorded 12 fixations that were above 0.75 a second – which is defined as the minimum time it is going to take for you to respond to a lead vehicle that is braking. A 0.75 a second eye glance in his opinion is a dangerously long glance.

85. Ms Samas refuted Professor Regan’s criticisms of some of her research in the course of her concurrent evidence and said that even though her digital billboard study did have a glance of a maximum duration glance of over .75 seconds – which is considered the minimum perception reaction time, it was also well within the two second upper limit. Ms Samas said her views were also supported by the Klauner 2006 study of the impact of roadside advertising referred to in the Ausroad Report. She said, while the Ausroad report mentions the two second upper limit and the 3.75 increase in crashes referred to by Professor Regan it also states that “… On the basis of Klauner ‘s 2006 results , that while looking at an external object increased crash risk by nearly four times , less than 1% of all crashes and near crashes were from that source of distraction. A substantial proportion of these external objects would not have been advertising signs. Thus, while it is not possible to tell from the reported results it is reasonable to conclude that far less than 1% of all crashes and near crashes involve distraction from roadside advertising”.

86. In the ultimate, Professor Regan told the Court that he was of the opinion , based on the evidence about the cogitative effect of digital billboard signs that they should be prohibited despite the views expressed in the Ausroad report (T 15.3.2017, P82 Ll16 -40). He confirmed his position that static billboards and digital billboards attract attention and based on the literature (see Section 7 of his statement of evidence) that he has read digital billboards attract more attention because they change messages. In short, reduce the dwell time and you will expose the driver to more messages and potential crashes.

Consideration

87. In assessing this application the RMS has submitted that Schedule 1 of SEPP 64 outlines the relevant safety considerations that must be addressed for any advertising proposal under SEPP 64 including this existing sign.

88. The importance of these matters is underlined by the fact that these safety assessment criteria are repeated (as a minimum) in Section 3 of the 2007 Guidelines. Based in the evidence of Professor Regan and Mr McTiernan the RMS submits that the reduction in dwell time to 15 seconds will distract a driver from the effectiveness of the directional signs, traffic signals or advisory signs in this complex location and therefore the road safety criteria in the Guidelines, cl18 (3) (a) and (b) are not met. The RMS’s objections to the proposal modifications as identified in their response to the application are confirmed by the expert evidence (tab 8 exhibit 2).

89. Furthermore, the Guidelines require a consideration of the aims in cl3 of the SEPP 64. And, if I compare the proposal with a dwell time of 15 seconds with the consent that approved a 24 hour static display I will find on the evidence that the proposed 15 second dwell time signage is not compatible with the desired amenity and visual character of an area, and does not provide effective communication in suitable locations: cl3 (1) (a) (i) and (ii). These matters are said to be relevant considerations under Division 2 Control of Advertisements: cl13 (1) (a) and sub clause (3) and are also called up by Section 1.2 of the Guidelines.

90. That said, the applicant submits that I must be careful in my consideration of this approved existing sign as it should not be assessed as a new sign. With that in mind and based on the evidence of Mr McLaren and Ms Samas the applicant submits that the evidence supports a finding that the application easily satisfies the relevant SEPP 64, assessment criteria, design, road safety and any public benefit test requirements under the Guidelines and the Criteria for Digital Signs (section 2.5.8. – at folio 77 exhibit 2).

91. The applicant submits that the Court should have little regard to the Tables in Appendix B in Professor Regan’s statement of evidence which was prepared in consultation with Mr Mc Tiernan (T15/3/2017 P92 L45) as that evidence was not derived from any guideline or source document. For example, Table B1 is a function of simply an analysis of the percentage of the sign that is readable, according to the table B2. Mr Mc Tiernan had the same table which he called Appendix D to his statement as he decided the critical distances. It is submitted that these experts’ evidence does not provide any satisfactory basis to support a refusal of this application when balanced against all of the evidence. In short the RMS experts have fixed and entrenched positions which do not support advertising on billboards along road corridors – particularly digital signage – however their views are not conclusively supported by the available literature.

Conclusion

92. After careful consideration of all of the evidence, including what I observed at the site view I am satisfied that the modification of condition 3 to a reduced dwell time of 15 seconds is acceptable in this case subject to the conditions offered by the applicant which include a trial period (exhibit 6)

93. The final evidence about crash history for this particular site - over the five year period 2012- 2016 is that there have been 5 crashes recorded (from the south bound lane) with 2 resulting in an injury outcome (exhibit 5 table 4.1). This crash history does not suggest that this location is a crash hotspot. The sign is approved and while it was operating for a period with a dwell time of 10 seconds (albeit, without consent) there was no recorded accident during that period. For the reasons outlined and referred to earlier after a safety audit Mr McLaren’s decided that a dwell time of 15 seconds was appropriate for this site. This time frame is as Ms Samas states slightly more conservative than the 10 seconds dwell time permissible under the best practice dwell time for a digital billboard (along a 60km/h road) as outlined in the 2015 Draft Guidelines.. Accordingly, for the reasons articulated by Mr McLaren and Ms Samas as summarised I consider the proposed dwell time to be appropriate in this case.

94. Ultimately, the traffic experts’ dispute was confined to the impact of the proposed 15 seconds dwell time on road safety performance of drivers approaching the existing sign. Mr McTiernan is of the view that the change in dwell time significantly increases the exposure of approaching drivers to changes and multiple changes in the advertising content and that this increased the risk to road safety performance to an unacceptable level ( Areas of Disagreement - exhibit K). While I have no doubt that Mr McTiernan and Professor Regan have extensive experience with road safety and driver distraction they appeared to have entrenched positions against billboard advertising which in my opinion compromised the objectivity of their evidence and therefore I found views less persuasive. During cross examination it was conceded that the statistical assessment that underpinned Professor Regan’ s evidence and opinion (Tables B 1, 2 and 3) were derived with the assistance of Mr Mc Tiernan and not based on any source document or guideline and therefore in my opinion was confusing and unreliable. In the circumstances I prefer Mr McLaren’s more objective expert assessment of the safety risk namely; “ …that the level of risk associated with a 15 second dwell time is no different to the current situation, i.e. it is and remains a low risk to road safety”(exhibit K).

92. With respect to driver distraction I accept the evidence of Ms Samas that there is no reliable basis to conclude that there will be a change in the level of risk as a result of the proposed change in dwell time for this sign in this location. The international scientific literature relied upon by Professor Regan to support his view that drivers take longer glances at digital billboards and crash results is at odds with the findings of Ms Samas’s research study in Australia (notwithstanding the limitations of that research). The international evidence does not specify what the driver was doing at the time of the fixation i.e. stopped at intersection viewing the sign (exhibit J). After careful consideration of all of the evidence I must agree with Ms Samas’s assessment that the scientific literature is vastly inconclusive of any direct evidence that digital billboards contribute to crashes, and it makes it very hard for both Professor Regan and her to give a definitive answer to the Court on whether that is the case or not. Nevertheless I must make a decision on the evidence as presented at this time. While billboards are clearly designed to attract attention there is no satisfactory evidence before me to conclude that there is a significant difference in average fixation durations between digital and static billboards.

As the consent authority for this application under s39 of the LEC Act I have carefully considered the evidence against the provisions of SEPP 64, the 2007 Guidelines, the draft Guidelines and other relevant evidence under s79C of the EPA Act and find no basis to refuse this application. In saying that a trial basis as proposed by the applicant is important as it will allow for a proper review of the change in dwell time and any resulting adverse impact can be addressed – noting that irrespective of the outcome of this appeal the consent will expire on 7 December 2030. No change is sort in that regard.

96. Having formed this view on the evidence before me I wish to make clear that my decision does not set a precedent for any future digital sign. Each case must necessarily be assessed on its own facts and the scientific and other evidence against the relevant statutory and policy framework.

Conditions

97. The parties have prepared competing versions of draft conditions of consent. I accept the applicant’s version filed with the Court on 27 April 2017 which is responsive to the Council’ version in exhibit 6.

Directions

98. In accordance with the reasons above, I have decided to grant the modifications to conditions 3 and 4 of the 1997 consent. I direct the parties to forward to the Court agreed conditions of consent in accord with the applicant’s draft conditions within 7 days. Upon receipt of the agreed conditions of consent I will make final orders in chambers. In the event that the terms of the conditions cannot be agreed the parties have leave to relist the matter before me to settle any outstanding matters.

ADDENDUM

99. In accordance with the terms of directions in paragraph [98] of my judgment of 15 September 2017 the parties have provided me with the agreed conditions of consent. I am satisfied firstly that consent to the application should be granted, as the appeal is an appeal under s97AA of the Environmental Planning and Assessment Act 1979, and that the conditions of consent accord with my findings. Accordingly I make orders in chambers as follows:

(1)            The appeal is upheld.

(2)            That conditions numbered (3) and (4) imposed on Development Consent no 30/1997, as modified on 7 December 2015, be deleted in relation to the existing digital advertising sign at Lot 1 in DP 1108502 known as nos 8-10 Princes Highway, Kogarah and approved subject to the conditions in Annexure A to this judgment.

(3)            The exhibits, other than exhibit 1 are returned.

Commissioner Dixon

Annexure A (90.2 KB, pdf)

Amendments

03 October 2017 - Addendum made on 3 October 2017

Decision last updated: 03 October 2017