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Australian Outdoor Sign Company Pty Ltd v Brisbane City Council QPEC 45
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Australian Outdoor Sign Company Pty Ltd v Brisbane City Council  QPEC 45
AUSTRALIAN OUTDOOR SIGN COMPANY PTY LTD (ACN 091 694 898)
BRISBANE CITY COUNCIL
1039 of 2020
Planning and Environment
Hearing of an appeal
Planning and Environment Court of Queensland at Brisbane
24 September 2021
29, 30 July 2021 and 26 August 2021
RS Jones DCJ
PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL OF ADVERTISING SIGN – where appellant sought to exhibit three-faced, electronic billboard advertisement on state-controlled road – where respondent refused application due to traffic considerations – where subject advertisement site deemed high priority by DTMR risk assessment model – where subject advertisement site deemed restriction notice area – where appeal dismissed
TRAFFIC ENGINEERING – whether proposed advertising device projects beyond required front alignment of subject site – whether proposed advertising sign located, designed and operated to minimise adverse impacts on essential standard of public safety and efficient operation of transport network – whether proposed advertising device results in driver distraction – whether driver distraction heightened by proposed advertising device being illuminated rather than static – where public interest in refusal of appeal
Planning and Environment Court Act 2016 (Qld) s 45
Attorney-General v Lawrence  QCA 136;  1 Qd R 505
Heilbronn & Partners Pty Ltd v Brisbane City Council  QPEC 25;  QPELR 368
Jedfire Pty Ltd v Council of the City of Logan & White  QPEC 47;  QPELR 41
Lane v Gatton Shire Council & Anor  LG 544;  QPLR 49
Odna Group Pty Ltd v Logan City Council  QPEC 41
Telstra Group v Hornsby Shire Council (2006) NSWLEC 133
WYLIE K for the appellant
LITSTER R QC for the respondent
MacDonnells Law for the appellant
Brisbane City Legal Practice for the respondent
- This proceeding is concerned with an appeal by Australian Outdoor Sign Company Pty Ltd (appellant) against a decision of the Brisbane City Council (respondent) to refuse the appellant’s application for a permit to exhibit an electronic billboard advertisement device at the corner of 692 Compton Road, Calamvale. For the reasons set out below, the orders of the Court are:
- The appeal is dismissed.
- I will hear further from the parties, if necessary, as to any consequential orders.
- On or about 23 May 2019, the appellant applied to the respondent to erect an electronic billboard on land situated at 692 Compton Road, Calamvale more properly described as Lot 51 on RP880211. The appellant intended to erect a single sided billboard with a face area of 30m² (3m x 10m). It was intended that the sign would be visible to southbound traffic on Beaudesert Road and be capable of being viewed by both vehicular and pedestrian traffic. By way of a decision notice dated 6 March 2020, the respondent refused the application.
- In reaching its decision to refuse the application, the respondent had regard to advice provided by the Department of Transport & Main Roads (DTMR) which stated:
“The Beaudesert Urban Arterial Road carries about 56,200 vehicles/day with considerable percentage of commercial vehicles, including B-Doubles in the vicinity of Compton Road intersection. The posted speed limit of the Beaudesert Road at this location 80km/hr (high speed environment).
There have been 30 casualty crashes reported at the intersection of Beaudesert Rd/Compton Road during 2013 and September 2018, including four hospitalisations. About 87% of these crashes were ‘rear end’ type crashes. This intersection has been ranked as ‘high priority’ in the current TMR-s Queensland Risk Assessment Model (QRAM), considering the crash rate and patterns, traffic and road characteristic values.”
- After considering that advice and a number of other matters, the decision notice provided:
“It is Council’s responsibility to ensure that in deciding whether to approve an application, regard must be given to relevant advice, public interest and traffic safety under Section 10 of the Advertising Local Law 2013. Relevant advice was obtained by DTMA and TPO’s suitability qualified traffic engineers. The public interest can be described as the considerations affecting the good rule and functioning of local government for the benefit of the community or the public as a whole. Upon review, Council does not support this application as it may cause significant obstruction, or distraction to, vehicular or pedestrian traffic. (emphasis added)
- The further and better particulars provided by the respondent on 25 September 2020 were that:
a. The proposed advertising device will be visible from Beaudesert Road, Calamvale and is designed to attract the attention of those travelling southbound on Beaudesert Road.
b. The proposed advertising device is located in a ‘restriction notice area’ which is an area in which advertising devices are preferred not to be located. (pursuant to the Department of Transport and Main Roads’ Roadside Advertising Manual)
c. Beaudesert Road is a busy State controlled road that carries approximately 56,000 vehicles per day (“VPD”).
d. The proposed advertising device will be noticeable to drivers travelling southbound on Beaudesert Road and making a left turn manoeuvre onto Compton Road eastbound, an unusual traffic environment in which drivers should be concentrating upon the road network and no be distracted by the proposed advertising device.
e. The potential for driver distraction is heightened as the proposed advertising device is both illuminated and not static with the ability to change advertisements.
f. Driver distraction and lead to traffic safety issues and the Court should not approve the proposed advertising device where it has not been demonstrated that the proposed advertising device will not result in driver distraction, having regard to matters of traffic safety. (any attempt to use conditions of approval to mitigate safety issues would result in unacceptable enforcement issues)
- Unsurprisingly, in the appellant’s notice of appeal, it is asserted that the proposed sign would not cause any obstruction of views or distraction to vehicular or pedestrian traffic. The notice of appeal then goes on to plead that:
“The Proposed Sign complements, or in the alternative, does not unreasonably distract from the desirable characteristics of a natural and built environment in which the advertisement is exhibited.
In refusing the application the Respondent purported to rely, at least in part, on advice received from the Department of Transport and Main Roads (DTMR). Although the Respondent has relied on DTMR’s advice it is not apparent that the Respondent has actually considered the crash data referred to by DTMR despite referring to this data as a basis for refusing the Application.
The Decision provides no substantiative explanation or detail of the crash data relied on by DTMR informing its views in respect of the matter. The Respondent either has that information and has not provided it to the Appellant or the Respondent does not have that information and has therefore not considered that information in making its Decision. In either outcome, the appellant has been deprived of the ability to understand the proposed basis on which the application was refused contrary to established principles of procedural fairness and natural justice.”
- For the purposes of this appeal, both the appellant and respondent retained the advice of traffic engineers, being Mr Bitzios on behalf of the appellant and Mr Trevilyan on behalf of the respondent.
- Prior to this proceeding commencing, the parties agreed that:
- The proposed advertising device is to be located wholly within 692 Compton Road, Calamvale, more particularly described as Lot 51 on R880211 (the site), at the corner of Beaudesert Road and Compton Road.
- The proposed advertising device will be visible from Beaudesert Road, Calamvale and is designed to attract the attention of those travelling southbound on Beaudesert Road.
- Beaudesert Road, being a State-Controlled Road under the Transport Infrastructure Act 1994 (Qld), is a “declared road” for the purposes of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM).
- The proposed advertising device is a single-faced electronic billboard.
- The Respondent’s Advertising Devices Local Law 2021 (the Local Law) came into effect on 21 May 2021.
- Other instruments subordinate to the Local Law comprise (Subordinate Instruments):
- (a)Advertising Devices Design and Assessment Rule (Advertising D&A Rule);
- (b)Advertising Devices Technical Standards (Advertising Standards).
- The matters that the Council (and on appeal this Court), must consider when deciding whether to approve or refuse an advertising device are set out in s 14(1) of the Local Law.
- The matters that the Council (and on appeal this Court), may consider when deciding whether to approve or refuse an advertising device are set out in s 14(2) and 14(3) of the Local Law.
- In the event that the Court determines that the proposed advertising device can be approved, the Court may remit the matter for the imposition of conditions under s 17 of the Local Law.
List of Issues
- In the so-called list of “Agreed Issues in Dispute,” a number of “Merit Issues” were identified as being:
- Whether, in the exercise of discretion, the proposed advertising device ought be approved, having regard to the following matters advanced by the Applicant:
- (a)approval of the proposed advertising device would achieve the purpose of the Local Law prescribed by s 2(2)(e) and (f), in that it would recognise both the value of the proposed advertising device to business and government, and the wider community benefit of the proposed advertising device to provide information to the public;
- (b)the fact that conditions may be imposed requiring the proposed advertising device to be capable of displaying targeted emergency messages or other messages of acute public importance or significance (Local Law s 14(2)(e));
- (c)the fact that there are no other electronic digital billboards in the immediate locality (Local Law s 14(2)(d));
- (d)to the extent there are any concerns about the physical location of the proposed advertising device of the type set out in paragraph 11(i) below, appropriate conditions may be applied to ensure compliance pursuant to s 17(3)(c) and (d) of the Local Law;
- (e)the proposed advertising device complies with the following standards prescribed by the Local Law and its subordinate instruments:
- (i)the proposed advertising device “face area” of 27.6m² is less than the maximum face area of 48m² prescribed in the Advertising D&A Rule Part 3, Billboard Sign paragraph (1);
- (ii)the proposed advertising device has an electronic display component only on one side of the sign, which is less than the maximum of two sides prescribed in the Advertising D&A Rule Part 3, Billboard Sing paragraph (1);
- (iii)the proposed advertising has a “dwell time” of 25 seconds, which is greater than the prescribed minimum dwell time of 8 seconds set out in Part 5.1(a) of the Advertising Standards; and
- (iv)appropriate conditions may be imposed to ensure that advertising content on the proposed advertising device would comply with the requirements set out in Parts 5.2.1 and 5.2.2 of the Advertising Standards.
- Whether, in the exercise of discretion, the proposed advertising device ought be refused, having regard to the following matters advanced by the Respondent:
- (a)Advice received from the Department of Transport and Main Roads (Local Law s 14(2)(b) & 14(3)), including the advice in letters to Council dated 11 June 2019 and 30 October 2019, indicating that the Department cannot support the proposed advertising device.
- (b)The proposed advertising device is located in a “restriction notice area” which is an area in which advertising devices are preferred not to be located.
- (c)Beaudesert Road is a busy State controlled road that carries approximately 56,000 VPD.
- (d)the proposed advertising device will be noticeable to drivers travelling southbound on Beaudesert Road and making a left turn manoeuvre onto Compton Road eastbound, an unusual traffic environment in which drivers should be concentrating upon the road network and not be distracted by the proposed advertising device.
- (e)The proposed advertising device will result in driver distraction contrary to the requirement in s 2(c) of Part 5 of the Advertising D&A Rule (Local Law s 14(1)(d)).
- (f)the potential for driver distraction is heightened as the proposed advertising device is both illuminated and not static with the ability to change advertisements.
- (g)Driver distraction is a traffic safety issue and the Court should not approve the proposed advertising device where it has not been demonstrated that the proposed advertising device will not result in driver distraction, having regard to matters of traffic safety.
- (h)The design, location and manner in which the proposed advertising device is planned to be controlled, will not maintain road safety, as required by paragraph 15 of the Intended Outcomes in Schedule 1 of the Local law (Local Law s 14(1)(c)).
- (i)it has not been demonstrated that the proposed advertising device would not project beyond the front alignment of the site as per paragraph 3 of the requirements for billboard signs set out in Part 3 of the Advertising D&A Rule (Local Law s 14(1)(d)).
- (j)The proposed advertising device does not achieve one of the purposes of the Local Law, namely, “… to ensure advertising devices are located, designed and operated to … at the very least avoid, where practicable, or minimise adverse impacts … on essential standards of public safety including the safety and efficient operation of the transport network, including the movement of … vehicles …” (Local law s 2(1)(e)).
- (k)To achieve the purpose identified at paragraph 11(j) above, requires application of a standard of safety that is in the public interest, as contemplated by s 2(2)(a) of the Local Law. Approval of the proposed advertising device would not be in the public interest (Local Law s 14(1)(b)).
- Unfortunately, as is often the case in this jurisdiction, the so called “Merit Issues” overstate and unnecessarily complicate what the real issues are. During the opening of the case for the appellant, Mr Wylie of counsel said there was one issue that would determine the outcome of this appeal. Namely, whether the proposed device would introduce a driver distraction which would present an unacceptable level of risk to traffic and road safety. Mr Litster QC who appeared for the respondent used different language which, in my respectful view, in essence meant the same thing or lead to the same conclusion. At the heart of this dispute is a difference between the opinions of the traffic engineers about the impact the device might have on the operational safety of the Beaudesert Road and Compton Road intersection. In particular, the left turn movement of southbound traffic on Beaudesert Road into Compton Road.
The relevant Local Law and Onus
- At the time the development application was lodged in 2019, the respondent’s Advertisement Local Law 2013 was in force. However, it is uncontroversial that for the purposes of deciding the outcome of this proceeding, the relevant local law is the Advertising Devices Local Law 2021.
- During oral submissions, Mr Litster QC expressed some reservation about the operation of s 45(1)(b) of the Planning and Environment Court Act 2016 (PECA) insofar as deciding who bore the onus. It is however unnecessary for me to concern myself with the topic. That is so because it was uncontroversial that it was the appellant who bore the onus, be it pursuant to s 45(1)(b) of the PECA or the application of orthodox legal convention that a party who makes the application for relief will usually bear the onus of satisfying the court that the relief or orders sought ought be granted.
The engineering evidence
- On 16 October 2020, the traffic engineers produced their Joint Expert Report. In that report, Mr Trevilyan identified a number of concerns about the proposal which included not only concerns about vehicular and pedestrian traffic but also about ambiguity in respect of the location and dimensions of the proposed sign.
- In response, Mr Bitzios, while acknowledging that the drawings provided to the respondent were not particularly precise in respect of the sign’s location, went on to say that:
“An expected condition of approval would be that the sign must not encroach into the road reserve because it would trigger TMR’s approval if it did.
The sign face could be shifted further into the site to ensure that it is entirely within the site without impacting the corner carparking space by modifying its design such that it is mounted on a supporting pole on each side of the sign face, or two poles within the landscaped area that straddle the carparking space, rather than a single central pole as shown…”
- After addressing a number of introductory matters, Mr Trevilyan concluded in the Joint Expert Report:
“At the Beaudesert Road/Compton Road intersection, the left turn movement from the northern approach is relevant, as:
- (i)It is an artefact of now obsolete road design with priority controlled dual left turn lanes;
- (ii)It clearly presents operational issues (observed from on-site observations);
- (iii)The proposed digital sign is within the field of view of a driver negotiating the left turn movement who will necessarily be automating their view from in front of them, to over their right shoulder, whilst having to make key decisions at the time;
- (iv)I have identified six reported casualty crashes in the last five years of direct relevance to this left turn movement attempting to enter the east bound traffic stream on Compton Road;
- (v)The crash history demonstrates that these decisions routinely place drivers towards the upper end of their cognitive load capability;
- (vi)Adding the proposed digital advertising sign within the field of view of these drives would additional cognitive load for those drivers, presenting a clear additional safety risk.
As an additional observation, the proposed digital sign location presents the following issues with respect to the through movement on the northern approach:
- (i)There are locations where a signal lantern would be hidden within the frame of reference of the digital sign’s illuminated face;
- (ii)There is a relevant crash history related to that movement.
Citation of research not being conclusive with respect to some aspects of whether or not a link exists between the existence of advertising signage on road safety is:
- (i)Largely related to locations at which the installation of signage would not have otherwise been controversial and therefore not determinative with respect to a potentially problematic location;
- (ii)Illustration of that signage proximity to busy intersection is not preferred, whereas signage on highway distant from interchanges is not problematic.
The geometric features of the proposed sign are best unclear, and as presented not contained within the subject site….”
- To address the concerns raised by Mr Trevilyan in their first Joint Expert Report, the traffic engineers produced a second report on 27 May 2021. The conclusions reached by the respective traffic engineers in that report are as follows:
“VB believes that the drawings…. address all of the concerns raised by BT in paragraph 34 of JER1 and that the digital sign as presented in the drawings attached to this JER2 will result in an immeasurably small to zero change in crash risk at the locations from which the sign might be glanced to. VB believes that the sign proposal should be approved.
BT considers the following:
- (a)The newly identified location and orientation of the proposed sign is depicted…. does not alleviate the safety concerns identified by BT within JER1, and BT still considers that the proposal ought be refused on this basis;
- (b)There is still ambiguity in relation to the dimensions of the proposed sign and thereby whether it can be accommodated within the subject land.
- (c)Notwithstanding this, BT accepts that should his interpretation of the proposed dimensions of the sign as identified in paragraph 10 be correct, then should the safety issues related to the proposed sign ultimately be considered to be acceptable to the court, that a condition of approval could be formulated so as to ensure that the sign did not extend beyond the property boundary.”
Discussion and consideration
- The Beaudesert Road and Compton Road is a signalised intersection under the control of the Department of Transport and Main Roads (DTMR). There are three approaches to that intersection. First, the southern approach, involving two through-traffic lanes and two right turn lane pockets. Second, the northern approach, involving three through-traffic lanes and a single left turn lane, which becomes two left turn lanes approximately 20m north of the splitter island by allowing traffic from the left most through lane to also turn left at this location. The two left turn lanes intersect with Compton Road eastbound at an angle of approximately 30 degrees and both lanes are required to give way to Compton Road eastbound traffic. Finally, the eastern leg, involving two right turn lanes which are signal controlled and a separate left turn lane with a “give way” arrangement at its intersection with Compton Road southbound. The speed limit at this location is 70 kph. As the DTMR advice reveals, in excess of 56,000vpd travel on this section of Beaudesert Road, including a significant proportion of heavy vehicle traffic.
- At the intersection, there are three relevant signal phases. They were identified by the traffic engineers as firstly, the A phase where northbound through traffic runs with southbound through traffic and southbound to eastbound traffic may turn left at the intersection unimpeded with right turning traffic from Compton Road having a red signal. Secondly, the traffic engineers identified the B phase where northbound through traffic runs with northbound to eastbound right turning traffic and southbound to eastbound left turning traffic must yield to the opposing right turning traffic. Finally, the traffic engineers identified the C phase where the Compton Road westbound to northbound right turn runs, allowing the westbound to southbound and southbound to eastbound “left turn with care” movements to run.
- On any view of things, the traffic environment at this intersection bears little resemblance to that which Judge Rackemann was concerned with in Odna Group Pty Ltd v Logan City Council. In that case, the sign was designed to face the southbound traffic on the Pacific Motorway. Unsurprisingly, the traffic volume on that road is higher than in this case. More importantly though, in the scheme of things, the relevant section of the Motorway was described as being straight and with no intersections or merge points in the immediate vicinity. In those circumstances, it is unsurprising that that section of the Motorway was considered to be uncomplicated in the sense that it did not involve or impose a high cognitive load on drivers. As discussed below, that is not the situation at this intersection.
- While the proposed advertising device will be visible from Beaudesert Road, it is designed to attract the attention of those travelling southbound on Beaudesert Road. That would include traffic continuing southbound on Beaudesert Road through the intersection and the traffic travelling southbound and then turning left in an eastward direction into Compton Road. Accordingly, the relevant traffic features are the B phase traffic signal and the traffic movement described as the northern leg.
- Of course, the very purpose of an advertising device such as that proposed is to attract the attention of drivers. The question then becomes whether a device of the type proposed introduces an unacceptable increase in the risk of an accident occurring as a consequence of the drivers’ attention being distracted. In this regard, it is uncontroversial that the decision-making process becomes more complex and the cognitive load on a driver increases when confronted by an intersection as compared to driving on a straight road or negotiating a gentle bend. It follows that the more complex or problematic the intersection, the greater the cognitive load the driver has to cope with.
- In this case, a driver turning left would have to turn their head over their right shoulder to observe traffic that may be coming from west to east from Beaudesert Road before returning their attention to the traffic in front. In both movements, the driver’s eyes would pass over the device. Mr Trevilyan’s summary of what would likely occur, which I accept is:
“During phase B, vehicles turning from Beaudesert Road north leg to Compton Road must identify if and when right turning vehicles from Beaudesert Road south leg towards Compton Road will arrive (and which lane they are in) and time their entry into Compton Road accordingly.
The slip lane users in the rightmost lane must wait for all right turning traffic to pass before entering the rightmost lane of Compton Road, and users of the leftmost slip lane need only give way to traffic approaching in the leftmost lane of Compton Road.
The drivers’ ability to adjudge when to enter Compton Road is affected by the angle at which cars approach Compton Road from the slip lane (quite an acute angle) and the fact that cars performing the right turn into Compton Road utilise either of two lanes, and it may not be readily apparent which lane a right turning vehicle is travelling in until that vehicle is somewhat through the intersection.
Many drivers in the leftmost slip lane would have their view of vehicles approaching from the right obscured when a vehicle is beside them in the rightmost slip lane.
Drivers in the rightmost slip lane may at times inadvertently enter the leftmost eastbound through lane on Compton Road.
Weaving occurs on Compton Road immediately downstream of the intersection as some vehicles change lanes depending on their destination of either north up Calamvale Road, or south into the shopping centre.”
- The complexity of this left turn merging manoeuvre is compounded by the situation where there is not just one left turning lane, but two. As a consequence, drivers turning left do not only have to be aware of traffic on Compton Road coming from the west, but also of the fact that there may be another vehicle in the lane beside them wishing to merge into the eastbound traffic.
- During cross-examination, Mr Bitzios accepted that the above was a traffic safety issue. However, he seemed to downplay this issue by referring to the fact that many drivers in this situation would be familiar with the intersection. That can be accepted, but there will clearly be a significant number of drivers travelling through this intersection who are unfamiliar with it. Also, as Mr Trevilyan pointed out, familiarity can sometimes be a two-edged sword in that it can lead to a degree of complacency. I should note here that there is no suggestion that a significant number of heavy vehicles would be attempting this manoeuvre.
- While it is uncontroversial that a device such as this will attract some drivers’ attention, the science on the nexus between distraction and the risk of an accident occurring, particularly from external sources, is far from certain. In the 2013 Austroads Report, under the heading “Distraction as a safety issue,” it is said:
“Studies based on crash reports suggest that perhaps 30% of all crashes involve driver distraction (Wang, Knipling & Goodman 1996) and in around 30% of those the distraction is from outside the vehicle (Stutts et al. 2001). However this source of data is likely to underestimate the contribution of distraction to crashes as drivers are unlikely to admit to such a cause and police may be unwilling to assign distraction as a cause without eyewitness testimony.
In one of the most compelling studies to date, Klauer et al. (2006) analysed the consequences of driver inattention using data from the 100-car Naturalistic Driving Study. While brief glances away from the forward roadway for the purpose of scanning the driving environment were found to actually decrease the crash risk, glances of two seconds or more doubled the crash risk. In addition, this risk was further increased for certain demanding traffic environment such as intersections and high density traffic.
Some of the riskiest kinds of inattentive driving that contributed to crashes and near crashes in the Klauer et al. (2006) study originated from either drowsiness or in-vehicle distractions. Importantly, looking at an external object exhibited the second highest significant odds ratio of all distractions, (reaching for a moving object produced the highest significant odds ratio) with a driver 3.7 times more likely to have a crash or near crash when looking at an external object. However this kind of distraction accounted for less than 1% of all crashes and near crashes in the study. Thus while looking at an external object appears to be quite risky behaviour when it is engaged in, it is not a frequent cause of crashes overall.”
“There is compelling evidence that distraction is a major contributor to crashes. However, studies providing direct evidence that roadside advertising plays a significant role in these distraction based crashes are currently not available. The studies that have been conducted show convincingly that roadside advertising is distracting and that it may lead to poorer vehicle control. However, the evidence is presently only suggestive of, although clearly consistent with, the notion that this is in turn results in crashes.
It is also worth noting, on the basis of Klauer et al.’s (2006) results, that while looking at an external object increased the crash risk by nearly four times, less than 1% of all crashes and near crashes were from this 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 involved distraction from roadside advertising.
While the Klauer et al. (2006) study may not be representative of all driving events, it does suggest that the contribution of roadside advertising to crashes is likely to be relatively minor. On the other hand, from a Safe System perspective it would be difficult to justify adding any infrastructure to the road environment that could result in increased distraction for drivers. The exception to this may be in the case of very monotonous roads where drivers are likely to suffer the effects of passive fatigue.”
- The Austroads study specifically addressed a number of matters or views under the heading, “Potential for Capturing Attention Involuntarily”. Relevantly in this case, it was reported:
“While the function of roadside advertising is clearly to capture attention, this is undesirable from a safety perspective if it results in attention being diverted involuntarily from the central task of driving. In order to minimise the possibility that such automatic attentional capture occurs, the following principles should be considered.
Because humans have a limited capacity for processing information simultaneously there is the potential for the processing of roadside advertising to interfere with the processing of information critical for safe driving. In order to minimise the possibility that attention is consumed to an unsafe degree the following principles should be considered.
Aspects of the driving environment other than visual clutter are likely to increase mental workload and decrease capacity to process task-irrelevant material such as roadside advertising. In particular, intersections, decision-making points and merge points are likely to be demanding of attention. This suggests that in these and similarly demanding driving environments roadside advertising should not be visible”. (emphasis added)
- The Austroads study is not a document of any statutory force. It is however, clearly a document to which regard can be had in cases such as this. Indeed, in this regard, Mr Bitzios, in his detailed cash assessment report, described the study as providing “a comprehensive review of research on the effect of roadside advertising on road crashes…”.
- A difficulty with the literature that Mr Bitzios had regard to is that it mainly focused on signs on highways where the road would be expected to be relatively straight. Most likely, the reason for this being that at intersections, there would be too many variables at play.
- A substantial sign which presents to the north and southbound traffic on Beaudesert Road and traffic on Compton Road already exists on the subject site. Unlike the existing sign which presents in portrait form from top to bottom, the proposed sign will be situated on a single pole structure and present in a landscape form. The screen will be some 8.6m in length and just over 3m in depth. As best as I can understand the evidence of the traffic engineers, nothing really turns on any differences in the dimensions of the respective signs nor in the way they present to the street. The critical differences between the signage that exists now, when compared to that proposed, centres around lighting and the way in which information will be advertised.
- The existing sign is passive, in the sense that what is being advertised is the existing tenancy of the small, commercial centre where it is located. The form of the advertisement would only change as and when there was a change to the tenancy arrangements. On the other hand, the proposed sign would advertise whatever product the promoter was prepared to pay for and the image advertising the product would change on a 25 second rotation, referred to as the “uniform dwell time”. Insofar as lighting is concerned, while the existing sign is lit by overhead spotlights that shine down over the three billboard faces, the proposed signage is intended to be illuminated by lighting that would surround the rectangular-shaped advertising screen. This was referred to by Mr Trevilyan as creating a “halo” effect.
- In respect of the issue of dwell time, no doubt to minimise the degree of driver distraction, it seemed to be accepted in Odna Group that the dwell time ought be increased from 25 second to 40 seconds. That was considered appropriate, having regard not only to traffic volumes and conditions, but also to the speed limit of 100kph.
- Before going further, I should note that Mr Trevilyan raised a further traffic safety matter concerning traffic movement in a southbound direction and continuing through the intersection, rather than turning left into Compton Road. It is abundantly clear that that concern of itself would not warrant refusal. As Mr Trevilyan quite fairly conceded, that may be a matter that the court could take into account to refuse the application in the event that otherwise, the respective cases between the appellant and the respondent were evenly balanced.
- On the evidence before me, I am satisfied that, leaving aside for the moment the southbound traffic turning left into Compton Road, the proposed advertising device could be appropriately conditioned and there would be no basis for refusal. That of course, is not the end of the matter.
- At this location, Beaudesert Road carries in excess of 56,000vpd. I also accept Mr Trevilyan’s evidence to the effect that this intersection “is an artefact of now obsolete road design”. No doubt as a consequence of that obsolescence, the merging of the southbound traffic turning left and the northbound traffic turning right onto Compton Road was described by Mr Bitzios as an “unconventional situation” and by Mr Trevilyan as “involving a complex traffic transaction.” No doubt, that is at least in part the reason why this location has been identified as being in a “restriction notice area,” being an area in which advertising devices are preferred not to be located.
- Before proceeding further, it can be readily accepted that living in today’s world involves the acceptance of a level of risk. Insofar as traffic is concerned, Skoien SCJ put it rather neatly in Jedfire Pty Ltd v Council of the City of Logan & Anor where his Honour said: 
“Traffic in modern urban settings is not assessed in Utopian terms. In Utopia all cars, driven only by skilful, courteous drivers, would carry the maximum number of passengers at reasonable speeds on roads perfectly designed for safe swift travel. But the legislature must be taken not to have been acting with Utopia in mind. So in this case I consider that what I have to do is to decide whether the proposal is for a reasonable or tolerable traffic arrangement in the context of modern urban motor vehicle movement.”
- No traffic situation in the real world will be entirely risk free. In cases such as this where matters of public safety are in issue, it is also appropriate to bear in mind the observations Quirk DCJ in Lane v Gatton Shire Council:
“One must be careful, in cases of this kind, not to allow considerations which may tend to provoke emotive responses to confuse the process whereby a planning authority is required to discharge its function. The gravity of possibly adverse consequences of risks associated with a proposal cannot be ignored. It should not be permitted, however, to distort the standard of proof required of an appellant in the discharge of the onus of showing that a town planning application should be approved.
The attractions of avoiding responsibility for allowing any proposal which has an element of serious risk, while only too obvious, must be resisted. As Carter J. when constituting this Court in Davjan v. Noosa Shire Council 1981 Q.P.L.R 69 observed, when a similar situation arose, ‘such an approach would be superficial and an abrogation of my judicial function’. He went on to point out that the standard to which a tribunal must be satisfied that a development will not of itself be a source of risk other landholders is the ‘civil standard’, namely, ‘a degree of persuasion of the mind according to the balance of probabilities’. The passage from Rejfec v. McElroy 112 C.L.R 517 at 521 which he cited is worthy of repetition, viz:
‘the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to obtain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.’”
- That said, this court has recognised that in appropriate cases involving traffic safety on public roads, a more conservative approach may be warranted. That approach is hardly unexpected and is applicable in this case.
- The respondent’s Advertising Devices Local Law 2021 (the Local Law) recognises the need to carry out a form of cost benefit analysis in determining whether to approve or refuse applications.  That Local Law recognises the value and wider community benefit of advertising devices such as this. The purpose of the Local Law, insofar as it is relevant here, is stated in s 2(1) as being:
“The purpose of this local law is to ensure advertising devices are located, designed and operated to compliment or at the very least avoid, where practicable, or minimise adverse impacts…” (emphasis added).
- Section 2(1)(e) then goes on to identify that one of the outcomes intended to be achieved is to avoid, or at least minimise, adverse impacts “on essential standards of public safety including the safety and efficient operation of the transport network, including the movement of pedestrians, cyclists, vehicles and aircraft.”
- In assessing applications such as this, pursuant to s 14 of the Local Law, the respondent must have regard to the following:
- a)any relevant advice obtained from suitably qualified experts; and
- b)the public interest; and
- c)conditions imposed on any relevant development approval; and
- d)the intended outcome; and
- e)any rules or procedures made under s 57; and
- f)technical standards made under s 58.
- There are no rules, procedures or technical standards in issue in this proceeding. Unsurprisingly, one of the intended outcomes is that “the advertising device is designed, located and controlled to maintain road safety and traffic efficiency.”
- Returning for a moment to the description that ought be applied to the left-hand turn manoeuvre into Compton Road. While I can accept Mr Bitzios’ opinion that it is an unconventional arrangement and that there are degrees of complexity, I am left in little doubt that complex is a more appropriate description. At the end of the day, as much was really accepted by Mr Bitzios. In any event, I agree with Mr Trevilyan that little turns on what descriptor is used. It is accepted that Mr Bitzios and Mr Trevilyan are in agreement about what the real issue is in this instance. Namely, the need for southbound drivers turning left to be aware of traffic turning right from the northbound traffic on Beaudesert Road and being able to act in a way so as to ensure they merge with that traffic safely.
- In this context, I accept the evidence of Mr Trevilyan to the effect that the greatest complexity or risk would likely arise in non-peak hour periods when the right-hand turn traffic was staggered, in the sense of not having blocks of vehicles or, to use Mr Bitzios’ term, a “platoon” of traffic turning right. In that situation, it is likely the traffic turning left from Beaudesert Road would be travelling at a very low speed, if not being entirely stationery. Whereas, with staggered traffic there would be a tendency for the left-turn traffic to merge with the eastbound traffic at greater speeds or require an adjustment in the approaching speed. As I understand it, that traffic scenario is similar to the scenarios outlined by Mr Bitzios as being the only ones where complexity arises.
- The most likely form of accidents occurring at this merge point is that described by Mr Trevilyan as “rear end” and “side manoeuvre swipe crashes.” Mr Bitzios also seemed to agree the crash data indicated that these were the most likely types of accidents that would occur at the subject location.
- A central plank to Mr Bitzios’ opinion is that “there is no nexus able to be established between digital signs and significant distraction which would lead to increased crash rates at this location.”
- As far as I am able to discern, that conclusion is based on the fact that “on the balance of the available research, it is probable that there is no link between driver distraction due to digital signs and an increase in the number of crashes in most circumstances.”
- For the reasons already given, little, if anything, could be concluded from the literature Mr Bitzios appears to have relied on. He himself recognised the shortcomings of that research and, in my view, he failed to give sufficient weight to a number of the cautionary observations made by that research. This is particularly relevant insofar as demanding traffic situations were concerned, such as intersections and high-density traffic situations.
- While I can understand Mr Bitzios’ concerns about the lack of evidence linking accidents that have occurred at this location with driver inattention or distraction, particularly external distraction, the accidents reported by Mr Trevilyan in my view are reflective of the complexity of the traffic manoeuvre at the subject location. The cluster of accidents at this location, regardless of the cause, must at the very least be an indication of the potential for an accident where the two sources of traffic merge. In this regard, I also accept Mr Trevilyan’s evidence that in more recent times, minor property only accidents are not recorded and, that it is “plausible” the recorded accident data is an underestimate.
- Finally on this topic, I would observe that I found Mr Bitzios’ evidence tending to downplay the relevance of the crash data less than convincing. While accepting that such data would usually be relevant information, he then seemed to suggest it was not relevant to the “specifics” of this intersection. This is presumably because there is no established link between the existence of a digital sign and the likelihood that it would increase the risk of an accident occurring. With respect, that suggestion misses the point being that at the merging point at this location, there is evidence of an already concerning cluster of motor vehicle accidents. As Mr Trevilyan, in my view, correctly pointed out, the location of the accidents is as important as the number of accidents.
- The reported traffic accidents in this case are distinguishable from the accident data before the Court in Odna Group. In that case, where traffic volumes were in the order of 80,000vpd, there were 11 accidents that were reported over a five-year period. Significantly however, those accidents were reported over a relatively straight section of road which was some 350m in length. That is, there was no cluster of accidents at one particular location, as is the situation here.
- Returning then to the illuminated halo effect described by Mr Trevilyan. In the respondent’s further and better particulars, two issues of concern were identified. It was said that the “advertising sign was both illuminated and not static with the ability to change advertisements.”
- On the topic of illumination, I prefer the evidence of Mr Bitzios and am satisfied that the so-called halo effect would be unlikely to result in any unacceptable increase in the risk of driver distraction. During daylight hours, including dusk and dawn, even if still illuminated, the level of illumination would be relatively unobtrusive. During the night after peak hour in the evening, traffic volumes would be expected to continue to decrease until the build-up back to peak hour the next morning. Also of significance is that, unlike the advertising component of the device, the lighting will be a static or constant situation. On balance, while more observable and intrusive than the current lighting, I am satisfied that it would not warrant refusal. As Mr Bitzios pointed out, the real issue was the impact the rotating changes in the information being advertised might have on drivers.
- According to the appellant, the real difference between the evidence of the traffic engineers is in their approach to tackling “the ultimate question to be resolved by the Court.”
- The different approaches were identified as follows:
“(a) the approach of Mr Trevilyan was to, in effect, undertake an inquiry or analysis as to the suitability, efficacy or quality (or lack thereof) of the proposed intersection, and in particular the part of the intersection involving left turning vehicles moving from Beaudesert Road to Compton Road. Upon identifying, in his opinion, that this relevant part of the subject intersection was of a lower-quality, he then went onto apply what he described as ‘precautionary principle’ and determined that an electronic advertising device should not be placed within this location; but
- (b)Mr Bitzios undertook two separate tasks. He firstly undertook the type of analysis undertaken by Mr Trevilyan, but he then went on to identify the risk, in terms of both likelihood and consequence, of the proposed advertising device causing a distraction, with meaningful consequence, to motorists using that intersection. (footnotes deleted)
- It is then submitted that:
“It is the latter part of Mr Bitzios’ analysis that, it is respectfully submitted, would be determinative in this Appeal, but is otherwise unanswered by Mr Trevilyan’s preference to instead apply his ‘precautionary principle.’
The manner in which Mr Bitzios undertook his detailed analysis of the potential risks of the electronic billboard causing unnecessary distraction is apparent from the manner in which he took each intersection in turn, and then identified why an electronic advertising device would not result in undue impacts for each part of the manoeuvre.
By way of contrast, Mr Trevilyan’s response in observations set out in paragraph ,  and  of the first JER, do not mention the advertising device at all, but continue to focus upon aspects of the intersection which he identifies as unduly difficult or complex. With respect to Mr Trevilyan, he has not ‘grasped the nettle’ of the question to be determined which is no whether or not this is a high or low quality intersection, but whether the inclusion of the proposed advertising device would have measurable impact upon drivers utilising that intersection.”
- While I understand the submissions made on behalf of the appellant and the basis for them, I am left unpersuaded. The first thing I would observe is the apparent emphasis on Mr Trevilyan’s use of the so called “precautionary principle”. Typically, that principle will become a relevant consideration when two cumulative pre-conditions exist. First, the existence of plausible threat of serious, if not irreversible environmental harm. Second, the level of scientific uncertainty surrounding that threat.
- Quite clearly, when Mr Trevilyan referred to adapting a “precautionary approach” he was not applying the precautionary principle or anything like it. His evidence was to the effect that, at an intersection involving a complex manoeuvre where there is a lack of data on the relationship between roadside advertising signs and driver distraction, there is a need to adopt a conservative approach. That is hardly a controversial approach.
- I also do not consider Mr Trevilyan’s focus on the physical characteristics of the intersection to be in any way misplaced. The physical characteristics of the relevant section of road is the starting point for any investigation of the nature required here. In fact, Mr Wylie in his closing address referred to it as “an essential starting point.” As Mr Trevilyan said in his evidence, if the subject site involved a straight section of road, this proceeding would probably not be required.
- As to the assertion that Mr Trevilyan had failed to “grasp the nettle,” as I understood it, it was submitted that Mr Bitzios, unlike Mr Trevilyan, “undertook a first-principles analysis to identify when, and how, advertising devices of the type can result in an increase in an adverse risk to driver discretion.”
- In that regard, I was referred in particular to Mr Bitzios’ observations in the first joint expert report:
“With reference to Paragraph 23, DB notes that distraction means directing one’s attention from something else; but this presumes that drivers are concentrating on one specific ‘item’ at a time when driving, which is certainly not the case. Distractions occur continuously and concurrently when driving, both in-vehicle and out-of-vehicle and the lines are blurred between what is a distraction (from the primary crash risk) and what are observations to information in the field of view. For example, glancing to a pedestrian on the adjacent footpath, or to a vehicle in the rear view mirror, or to a building façade, or to a signal change may or may not ‘distract’ from concurrently observing the movement of the vehicle directly in front (the highest crash risk item). For a new distraction such as a new digital sign to be significant in the context of increasing the cognitive load to an extent that it would increase the probability of crashes it must: (1) introduce a new glance for (2) a critical glance duration in (3) a critical direction outside the ordinary field of view and (4) at a critical time relative to the other vehicles that the vehicle might be likely to crash into. Otherwise, the new distraction is just one of the many already in the field of view that may or may not be glanced to that have an immeasurably small influence on cognitive load. The congestive load is not unusually high in this location.” (emphasis added)
- Before proceeding further, I am unable to accept that Mr Trevilyan’s approach or analysis was in any way deficient or not to the point. In any event, turning to the four matters identified by Mr Bitzois, while the proposed device may not introduce a “new glance,” it will be in the line of sight of those drivers turning left into Compton Road on two occasions. First, when turning to the right to see if any traffic is coming from the west and second, when turning back to observe what is occurring in front at the point of merging.
- In such circumstances, I am unable to accept that the proposed device could be said to be within the ordinary field of view of the driver. That is, it is not the situation fronting the court in Odna Group, where the sign would be in the constant view of a driver driving on a straight section of road. Here, the device would come into view at the critical point of merge or only at those two occasions described above. Mr Trevilyan described this as the device coming into view at the “don’t rear-end someone” to “don’t allow the right-turner to get me” decision making process at the point of merging with the west bound traffic coming from Beaudesert Road.
- As already observed, the crash data in my view is persuasive evidence that there has been an ongoing problem with the merging manoeuvre at this location for whatever reason, or reasons. In this case, where both traffic engineers agree that the physical features of the relevant aspects of this intersection are more complex and impose a greater cognitive load than would otherwise be expected, the question to be answered is whether it is then appropriate to add a new and greater potential source of distraction, when compared to the current situation.
- It can be accepted that for most drivers, the viewing time would typically be in the order of 0.5 seconds, unless there was an overwhelming motivation to dwell on it for a longer time. It can also be accepted that most drivers would only observe no more than one changeover of advisements. All of that said though, it must follow that the proposed device will likely be advertising a newer and wider range of products when compared to what those familiar with the intersection are presently accustomed to. The proposal is more dynamic than that which presently exists. As Mr Bitzios accepted, digital devices have a greater propensity to attract attention than static signs and it would be appropriate to prohibit them at some locations.
- On balance, I am not satisfied that it would be appropriate for a new and more intrusive source of distraction to be established at this already problematic intersection. To perhaps put it another way, I am not satisfied that the proposed device would not result in an unacceptable increase in the risk of accidents occurring at this location as a consequence of driver distraction.
- It was also submitted on behalf of the appellant that there were a number of “other matters” that would warrant approval. Those matters focused predominantly on the impacts on the functionality of the intersection, the power to impose appropriate conditions and the scope to have the device removed if it did, in fact, prove to be a traffic hazard. I would also add to those matters the ability to use the device for public announcements when appropriate.
- It is, however, unnecessary to dwell on those matters. The functionality, familiarity and imposition of conditions have been addressed in these reasons. None of those matters, either of themselves or together with the public benefit aspects, would warrant approval in the face of my findings concerning the risks to traffic safety.
- At the end of his oral submissions, Mr Wylie made the quite remarkable submission that his client would agree to a condition restricting a dwell time to 24 hours. That is, the image being advertised would present as a static sign to drivers until it changed over the next day. Where appropriate, the court could of course impose, by way of example, a condition restricting the dwell time to 24 hours. Unfortunately though, the state of the evidence is such that I am unable to be satisfied that such a condition would allay all, or even most, of Mr Trevilyan’s concerns. Accordingly, I do not consider that it would be appropriate to allow this appeal subject to the imposition of such a condition.
- For the reasons given, the orders of the Court are:
- The appeal is dismissed.
- I will hear further from the parties, if necessary, as to any consequential orders.
 Court Document No. 1 – Notice of Appeal at para 6.
 Court Document No. 1 – Notice of Appeal at para 6.
 See Exhibit 3 at p 3, para 20.
 Court Document No. 1 – Notice of Appeal at para 8(f) – (h).
 Court Document No. 15 – Order of His Honour Judge Everson, Annexure A at paras 1 – 9.
 Made under s 57 of the Local Law.
 Made under s 58 of the Local Law.
 Court Document No. 15 – Order of His Honour Judge Everson, Annexure A at paras 10 – 11.
 NOTE: Pursuant to the Department of Transport and Main Roads’ Roadside Advertising Manual.
 NOTE: Any attempt to use conditions of approval to mitigate safety issues would result in unacceptable enforcement issues.
 See T1-3 at lines 27 – 46 and T1-4 at lines 1 – 14. This was also repeated in the Written Submissions of the Appellant at p 2, paras 6 – 7.
 Attorney-General v Lawrence  1 Qd R 505 at .
 Exhibit 3 at p 5, para 34.
 Ibid at p 8, para 35.
 Exhibit 3 at p 21, para 100(g) – (j).
 Exhibit 4 at p 7, paras 23 – 24.
  QPEC 41.
 NOTE: 80,000vpd.
 Refer to Exhibit 3 at p 25 and see also Exhibit 12.
 Exhibit 3 at pp 12 – 13, para 61.
 T1-32 at line 33.
 Exhibit 9 at p 14.
 See Exhibit 10 at pp 417 – 418.
 Exhibit 9 at p 16.
 Exhibit 9 at pp 18 – 19.
 Exhibit 3 at p 48 and in this regard, see also Odna Group at  – .
 T2-14 at lines 4 – 33.
 See Exhibit 17.
 NOTE: The evidence is that information can be more readily absorbed when presented in landscape form.
 NOTE: In Odna at p 11 per , it was observed that a dwell time of 40 seconds would result in a static (no change) situation for 70% of drivers at 100 kph. While there is no direct evidence of this nature before this court, the evidence of Mr Bitzios is that typical viewing time would be in the order of 0.5 seconds and, for most drivers, they would observe only one change of signage.
 See Exhibit 3 at p 22, para 100(g). This was a matter which Mr Bitzios also seemed to agree with per T1-38 at lines 8 – 32.
  QPELR 41 at [43(J)].
 Cited with approval in Powell & Ors v Toowoomba Regional Council & Ors (2014) QPELR 443 at  per Durward SC DCJ.
  LG 544.
 See Heilbronn & Partners Pty Ltd v Brisbane City Council  QPELR 368. Cited with approval in Mackay Resource Developments v Mackay Regional Council  QPELR 782; Harburg Nominees Pty Ltd (as trustee for TW Superannuation Fund) v Brisbane City Council & Anor (No 2) (2016) QPELR 979.
 NOTE: I do not consider the Advertisements Local Law 2013 adds anything to this discussion.
 Local Law per s 2(2)(e) and (f).
 Ibid at s 2(1)(e).
 See Local Law, Schedule 1 per Intended Outcome 15.
 T1-36 at lines 1 – 23 and see also Exhibit 5 at p 2, para 6(d).
 See T2-45.
 Exhibit 5 at para 6(d) and see also T1-43 at lines 20 – 30.
 Exhibit 3 at p 13, para 62.
 T1-34 at lines 1 – 33.
 Exhibit 3 at p 15, para 74.
 Ibid at p 21, para 99(e).
 T2-14 at lines 14-33 and T2-36 at line 37. See also Exhibit 9 at pp 18 – 19, referred to in para 28 herein.
 See Exhibit 12.
 NOTE: Described by Mr Trevilyan as being illustrative of a serious issue.
 T1-45 at lines 17 – 27.
 Exhibit 3 at p 16, para 79.
 T2-49 at lines 40 – 46 to T2-50 at lines 1 – 36.
 NOTE: The appellant has already agreed to comply with a number of conditions including lighting. Also, while I have evidence on this matter, it would seem at least plausible that conditions would be imposed to cause illumination of the sign to adjust to ambient light conditions. Refer to Odna Group at  –  and see also T1-39 at lines 30 – 43.
 Written Submissions of Appellant at paras 68 – 69.
 Ibid at para 70.
 Ibid at paras 71 – 73.
 See for example Telstra Group v Hornsby Shire Council (2006) NSWLEC 133 per Preston CJ and see also definition in Macquarie Dictionary.
 T2-38 at lines 36 – 45 to T 2-40 at lines 1 – 20.
 See Transcript of Closing Submissions dated 26 August 2021, T1-27 at lines 25 – 27.
 Written Submissions of Appellant at para 33.
 Exhibit 3 at para 25.
 T2-42 at lines 28 – 33.
 T2-20 at lines 1 – 18.
 T2-12 at line 42.
 T2-15 at lines 22 – 28.
 Written Submissions of Appellant at pp 24 – 26.
- Published Case Name:
Australian Outdoor Sign Company Pty Ltd v Brisbane City Council
- Shortened Case Name:
Australian Outdoor Sign Company Pty Ltd v Brisbane City Council
 QPEC 45
RS Jones DCJ
24 Sep 2021