Think Outdoor Pty Ltd v Brisbane City Council
[2024] QPEC 48
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Think Outdoor Pty Ltd v Brisbane City Council[2024] QPEC 48
- Add to List
Think Outdoor Pty Ltd v Brisbane City Council[2024] QPEC 48
Think Outdoor Pty Ltd v Brisbane City Council[2024] QPEC 48
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Think Outdoor Pty Ltd v Brisbane City Council [2024] QPEC 48 |
PARTIES: | THINK OUTDOOR PTY LTD (ACN 161 380 623) (appellant) v BRISBANE CITY COUNCIL (respondent) |
FILE NO/S: | 142 of 2023 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal against refusal |
ORIGINATING COURT: | Planning and Environment Court, Maroochydore |
DELIVERED ON: | 15 November 2024 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 & 14 November 2024 |
JUDGE: | Williamson KC DCJ |
ORDER: | Order as per draft |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – where Council refused appellant’s application to install, erect and display an advertising device – where advertising device is an electronic billboard – where billboard will display changing images – where parties agreed a condition can be imposed in relation to the dwell times for images for the purposes of maintaining road safety to an acceptable standard – whether conditions should provide for a dwell time of 10 and 25 seconds. |
CASES: | Pynhall Pty Ltd v Logan City Council [2024] QPEC 11 |
COUNSEL: | Mr K Wylie for the appellant Mr T Stork for the respondent |
SOLICITORS: | Gantt Legal for the appellant City Legal, Brisbane City Council for the respondent |
- [1]At the completion of a two-day hearing before me, which commenced on 13 November 2024, I indicated to the parties that I would give judgment in the terms sought by the appellant. The appeal was adjourned overnight to allow a conditions package and draft judgment to be prepared. Today I have formally made the orders, which I was told were, in their terms, agreed between the parties. I did so for the reasons that now follow.
- [2]On 7 August 2023, Council’s delegate refused an application to install, erect and display an advertising device on land situated to the north-west of the intersection of Beaudesert Road, Fox Road and Paradise Road, Acacia Ridge. The device for which approval was sought is a double-sided digital billboard. A device of this nature enables displayed images and content to change at specified intervals. The application for approval was assessed and decided under Council’s Advertising Devices Local Law 2021 (the Local law).
- [3]This is an appeal against the delegate’s refusal. The appeal is a hearing in new. It is for the appellant to establish the appeal should be upheld.
- [4]Council’s position changed during the course of the appeal. By the time of the hearing, it contended the application could be approved, provided specific conditions were imposed. The conditions were said to be of such importance that if not imposed, the application should be refused. Not all of the conditions proposed fell into this category; it was limited to only a handful. The conditions of this character were intended to ensure the proposed digital billboard is designed, located and controlled to maintain road safety. This is an outcome required by one of 18 intended outcomes in schedule 1 of the Local law. Section 14 (7) of the Local law provides this is a mandatory consideration for assessing the application.
- [5]The dispute between the parties ultimately focused on a single condition. They disagreed about a condition that prescribes a minimum period (dwell time) for each individual image or message to be displayed. The appellant contended for the following condition (Ex.8, p. 31):
“Minimum display period (Dwell Time) for each of the individual images/messages displayed on the electronic display component (EDC) panel is to be maintained at:
North Facing Panel (southbound Beaudesert Road, Acacia Ridge)
- 10 seconds for the Southbound Panel.
South Facing Panel (northbound Beaudesert Road, Acacia Ridge)
- 25 seconds for the Northbound Panel.”
- [6]The Council contended for different dwell times to that set out in the appellant’s condition. They were identified in exhibit 8 at page 25. The Council contended for the following:
“Minimum display period (Dwell Time) for each of the individual images/messages displayed on the electronic display component (EDC) panel is to be maintained at:
North Facing Panel (southbound Beaudesert Road, Acacia Ridge)
- 36 seconds for the Southbound Panel.
South Facing Panel (northbound Beaudesert Road, Acacia Ridge)
- 200 seconds between the hours of 7.00am to 9.00am and 2.30pm to 6.30pm…; and
- 100 seconds at all other times thereafter…”
- [7]Irrespective of the dwell times stated in the above conditions, the purpose for doing so is to mitigate a known risk, namely driver distraction due to involuntary glances towards the billboard. The trigger for such a glance is the change of image or content. Driver distraction needs to be considered, and where necessary, mitigated, because it can lead to poor driving choices, which in turn can lead to traffic accidents. It can lead to traffic accidents that result in collisions between vehicles, cyclists, and pedestrians. The consequences of these accidents can vary considerably.
- [8]The central issue to be determined in the appeal is whether the appellant has established that the condition it proposes in relation to dwell time, taken in conjunction with the balance of the agreed conditions, will ensure the proposed advertising device is designed, located, and will be controlled to maintain road safety to an acceptable standard. Council contended the Court would not be so satisfied unless the condition it contended for was imposed.
- [9]Before dealing with some background and the disputed issue, it is relevant to observe that there are four contextual matters that I regard as important in informing the Court’s assessment in this appeal.
- [10]First, there is an existing and approved double-sided static billboard on the site the subject of the application. It is marginally larger than the proposal and has the potential to cause driver distraction by reason that it too may trigger involuntary glances away from the driving task at hand.
- [11]Second, crash history associated with the intersection of focus here does not suggest there is any underlying traffic safety issue with the design and construction of that intersection. Nor does the crash history, which is limited in number, suggest the introduction of the double-sided static billboard on the site has had any appreciable adverse impact on the safety of the intersection of interest. This, in my view, is perhaps unsurprising given the evidence of Mr Davidson, who is the appellant’s traffic expert. He said the design of the intersection is fairly characterised as typical, consistent with relevant standards, and would be familiar to motorists. This can be accepted given ordinary driving experience. The intersection does not require unorthodox manoeuvres to navigate it. It has good visibility and good sightlines.
- [12]Third, while it is trite to say, the risk associated with traffic accidents in everyday life can never be eliminated. The very nature of driving involves a risk of collision, be it with other vehicles, pedestrians, or cyclists. This means that the risk of a traffic accident and the acceptability of that risk necessarily turns on matters of fact and degree particular to that case.
- [13]Fourth, given the central issue in this case involves an examination of risk, it is appropriate to observe that caution and a careful approach is always appropriate for such matters. That said, the presence of risk does not in and of itself call for a nervous approach or intolerance. The assessment of risk and its acceptability calls for an examination of the nature and extent of the risk, and the means by which it is proposed to be addressed: Pynhall Pty Ltd v Logan City Council [2024] QPEC 11, [51].
- [14]With respect to the fourth matter set out above, I can identify immediately that the nature of the risk to be examined in this case is one of collision between vehicles and other vehicles, pedestrians, and cyclists. The appellant’s case is that the nature and extent of that risk is not significant, but, moreover, it is a risk that will not sound in any unacceptable consequences. This is because the appellant’s case relies upon the imposition of conditions to mitigate the risk.
- [15]It is now necessary to set out some background about the road network, the existing billboard on the site, and the proposed billboard.
- [16]The site is located on the western side of Beaudesert Road, to the north-west of a four-way signalised intersection. Beaudesert Road represents the northern and southern leg of the intersection. Paradise Road is the eastern leg. Fox Road is the western leg. In this location, Beaudesert Road forms part of the Mount Lindesay Highway corridor and comprises a six-lane divided carriageway formation, with three lanes of travel in each direction. Provision is made for cyclists on the edge of the carriageway close to the verge. Beaudesert Road also carries significant traffic volumes. It carries in the order of 20,000 vehicles per day in each direction on a weekday, and in the order of 13,000 to 14,000 vehicles on each day of the weekend. The posted speed limit is 70 kilometres per hour. The evidence establishes that visibility for drivers is good at the intersection. Sightlines are also clear.
- [17]The site is currently improved with a freestanding static billboard with two faces. Each face is 12.66 metres wide by 3.35 metres high. The billboard structure is 7.1 metres above the ground and has a total height of 11.26 metres. One face is visible to the northbound traffic. Taken at its most generous, this face is visible for a distance of some 330 metres. Given its size, its impact on driver behaviour is unlikely to occur at this distance. Any potential impact is likely to occur closer to the intersection, somewhere in the order of about 150 metres. One face of the billboard is visible to southbound traffic. Again, adopting a generous view, this face is visible for a distance of about 350 metres, but given its size, is unlikely to have an impact on driver behaviour at this distance. This is likely to occur much closer to the intersection, again, in the order of 150 metres.
- [18]Mr Davidson, the traffic engineer called by the appellant, carefully examined crash history for the intersection of interest. A review of that history, which is fairly described as limited, does not suggest the intersection is adversely affected by any road safety concerns, beyond what may be reasonably expected for an intersection of this size and carrying the traffic volumes set out above. As I have already said, the crash data does not suggest the presence of the static billboard on the site has adversely impacted on the safety of the intersection for vehicles, pedestrians or cyclists.
- [19]The application seeks approval to upgrade the existing billboard by replacing the northern and southern faces with electronic screens. Each face will have an area of 36 square metres (12.0 metres wide by three metres high), marginally smaller than the existing billboard.
- [20]Conditions agreed between the parties include controls going to the nature of the image or messages that may be displayed on the billboard. Controls with respect to the way in which an image (or message) changes from one to the next are also specified. In this regard, it was agreed the following conditions should be imposed on any approval (Ex.8, pp. 26-27):
“12. Each image/message displayed by the advertising devices EDC:
- must not display any video and/or animated content.
- must not be split to display multiple advertisements on the one EDC.
- must not imitate or emulate a traffic control device such as traffic lights or regulatory or advisory traffic control signs.
- must not instruct drivers to perform an action such as ‘Stop’, ‘Halt’ or ‘Give Way’, whether through using text and/or symbols reasonably know to have such a meaning.
- must not invite traffic to move contrary to any traffic control device or turn where there is fast moving traffic.
- must not contain messages that are distractive or otherwise inconsistent with road safety.
- must be legible. A clear font must be used.
- must not be easily mistaken for traffic control signals, or ‘stop’ or ‘tail lights’ of moving vehicles by containing large areas of illuminated red or green display.
- must display (default to) a blank (black) screen in the event of a malfunction or failure of either the advertisement’s EDC or related hardware/system/software. Generic hardware screen messages and error messages must comply with the same requirements for its EDC display content.
- must be static (i.e. no flashing, blinking, revolving or intermittent lights).
13. When an image/message displayed on the advertising device changes, the whole EDC:
- should ideally change within 0.3-0.5 seconds, however, must change in less than 0.5 seconds.
- must not use methods of display change such as ‘fly in’ or ‘scroll’ or any other type of message change.
- must not allow the screen to go blank between different images/messages.”
- [21]The above conditions are intended to minimise the extent to which content, or the changing screen of the billboard, will distract a driver. I accept the conditions will achieve this intention. They are sensible conditions. The assessment of the application proceeds on the footing that these conditions would be imposed on an approval and complied with.
- [22]To examine the issue in dispute, I had the benefit of evidence from two experienced traffic engineers: Mr Davidson for the appellant, and Mr Trevilyan for the respondent. They prepared a detailed joint report and separate statements. A review of this detailed material, in conjunction with technical standards promulgated by Council and the Department of Transport and Main Roads, and the Austroads design guide, establishes there are different considerations applicable to the dwell time appropriate for each face of the billboard. I will deal with the north facing panel first.
- [23]As is clear from the conditions set out above, the appellant proposes a dwell time of 10 seconds for the north facing panel of the billboard. This face will be visible to vehicles travelling southbound along Beaudesert Road. Adopting, as I have said, a generous view, the viewing distance for drivers to the billboard is in the order of 350 metres. The proposed billboard will be primarily to the right-hand side of a driver’s primary field of view.
- [24]I am satisfied a dwell time of 10 seconds will appropriately maintain road safety taking four considerations in combination.
- [25]First, section 14 of the Local law requires a decisionmaker to have regard to, among other things, technical standards made under section 58. It was common ground the technical standard applicable to advertising devices is contained in exhibit 2 at pp. 193 and onwards. Section 5.1 of the standard states, in part (Ex.8, pp. 202-203):
“5.1 Changeable Content Dwell Times
Any advertising device capable of changing the message displayed must adhere to the following criteria…
…
Each of the individual messages must be displayed for a minimum amount of time (defined as the ‘Dwell Time’). Minimum dwell times will be determined based on the fastest signed traffic speed limit of any road section where a driver would reasonably view any of the proposed EDC upon approach as determined by a CARS officer during an application assessment site visit.
Where the device is visible from a roadway:
a)where the sign speed limit is <= 80km/h, the minimal display dwell time must be eight seconds, or…”
- [26]The above standard promulgated by Council speaks of a minimum amount of time for the display of an individual message: this is dwell time. Minimum dwell times are determined based on one parameter, namely, the fastest signed traffic speed limit of any road section where a driver will reasonably view any of the proposed content upon approach. Here, it is uncontroversial the signed speed limit is 70 kilometres per hour. In such circumstances, Council’s own document provides for a minimum dwell time of eight seconds. The condition proposed by the appellant complies with this standard. That said, compliance is not decisive, but it is an important matter in the assessment of the application. This is because, in my view, it was not suggested by Council that its standard was unsoundly based or overtaken by events. Mr Stork eschewed any such suggestion on behalf of Council.
- [27]Second, Beaudesert Road is a state-controlled road under the management of the Department of Transport and Main Roads. It is, in that circumstance, relevant to have regard to the Department’s roadside advertising manual. The manual was before the Court as exhibit 5. Section 3.6.1.4 of the manual relevantly provides as follows:
“Each of the individual advertisements displayed on an electronic billboard must be displayed for a minimum amount of time (the dwell time). Table 3.6.1.4 defines the minimum dwell times based on the road type and speed limit of the road the electronic billboard is visible from.”
- [28]The two parameters relevant to the Department’s guideline are speed and the road type on which the advertising device is located. As I have already said, it was common ground the speed limit for this part of Beaudesert Road is 70 kilometres per hour, and it is a state-controlled road, but it is not a motorway or motorway standard road. In these circumstances, table 3.6.1.4 identifies a dwell time of 10 seconds. This can be contrasted with the dwell time prescribed for a device that is visible from a motorway or motorway standard road. The dwell time for such a device is 25 seconds. The dwell time proposed by the appellant, and supported by Mr Davidson, complies with the Department’s roadside advertising manual. Again, while not decisive, this is a matter of import, in my view, given it was not suggested the Department’s technical design document was unsoundly based or ought not be applied.
- [29]Third, a review of the path of travel and surrounding conditions establishes there is no traffic engineering reason that warrants a bespoke approach to the identification of a dwell time beyond those identified in the standards set out above. This is because, as Mr Davidson’s evidence establishes, there are no unusual or peculiar circumstances present for the driver on the relevant approach; that is, there are no features that are suggestive of an elevated level of risk of collision for southbound traffic. Indeed, it was common ground between the traffic engineers that the approach for southbound traffic travelling on this part of Beaudesert Road is benign. This is not to say it is pristine and there is no risk; rather, it is simply a reflection that there are good sightlines and visibility for drivers to make safe driving decisions. I am satisfied this will not be impeded to any appreciable degree by reason of an involuntary glance to the northern face of the proposed billboard.
- [30]The first three matters, in combination, are sufficient to establish a sound basis to adopt the dwell time of 10 seconds for the north-facing panel of the billboard, as proposed by the appellant. It can, however, be said that the points are reinforced by a fourth consideration, to which reference can be made.
- [31]Council’s case in relation to the appropriate dwell time to mitigate the risk of collision was founded on the evidence of Mr Trevilyan. He calculated a preferred dwell time based on a formula contained in table C1.1 of the commentary to Part 13 of the Austroads Guide to Traffic Management. The purpose of the formula is to achieve a stated goal, which is in these terms, namely ‘to limit the number of message changes that drivers are exposed to’. Mr Trevilyan, in applying the Austroads formula, arrived at a dwell time of 36 seconds for the north-facing panel of the billboard. Mr Davidson did not accept the formula was the correct methodology to apply to identify dwell times. He was critical of the formula. He nonetheless carried out the calculation required by the formula.
- [32]Assuming a view distance of 150 metres, Mr Davidson calculated that a dwell time of 10 seconds for the northern face of the billboard yields a ‘PD’ of 0.77, or 77%. This is taken to be a reference to the proportion of drivers who see a change in the displayed image or message. The commentary to the Austroads Guide to Traffic Management provides that, ‘ideally’, the proportion of drivers (PD) should be much less than one. Mr Davidson’s calculation demonstrates this can be achieved with a 10 second dwell time.
- [33]In fairness, it should be observed that Mr Davidson’s calculation applies a viewing distance of 150 metres, which is less than the distance it can be said the face of the billboard will be visible to drivers. That distance is 350 metres. If that distance is applied, a much greater PD, in excess of one, is derived; however, I do not regard it appropriate to adopt a viewing distance of 350 metres. It is unnecessary to do so, because it is unlikely the billboard would influence driver behaviour to any significant extent until a vehicle is within about 150 metres of the billboard. Prior to this distance, there is, in effect, no decision-making required by the driver. It is essentially a straight drive where a driver need only keep the vehicle in its lane. A fleeting, involuntary glance at the billboard in the driver’s peripheral vision will not adversely impact the driver’s attention for this basic task. Further, it is unlikely the billboard would appear to be sufficiently legible to meaningfully distract a driver at a distance of 350 metres away in any event.
- [34]Putting aside misgivings I have about the formula set out in table C1.1 of the commentary to Part 13 of the Austroads document, I am satisfied, when carefully considered, it demonstrates a dwell time of 10 seconds for the north-facing panel of the billboard is appropriate here. This dwell time demonstrates compliance with intended outcome 15 of schedule 1 of the Local law. Road safety will, as a consequence, be maintained to an acceptable level.
- [35]Turning to the south-facing panel of the billboard, the appellant contends a dwell time of 25 seconds is acceptable to maintain road safety. This contention relies upon the evidence of Mr Davidson. He recommended this dwell time be adopted by a condition of approval.
- [36]Consistent with the north-facing panel, it can be said that Mr Davidson’s opinion in the appellant’s case finds support in technical standards promulgated by Council and the Department of Transport and Main Roads. The former has in mind a minimum dwell time of 8 seconds for the circumstances here. The appellant’s proposed condition comfortably complies with this minimum. The Department’s guideline has in mind a dwell time of 10 seconds. Again, the dwell time proposed complies with this minimum. Indeed, the dwell time proposed complies with that envisaged by the Department’s design manual for a device visible from a motorway or motorway standard road. These matters are of import, in my view, in the assessment, given it is not suggested the technical standards are unsoundly based, overtaken by events or should not be applied.
- [37]Council’s case in relation to the dwell times for the south-facing panel is founded on two points. First, it was contended there are three specific vehicle movements of interest that would be adversely impacted, in safety terms, by involuntary glances to the proposed billboard. The involuntary glances were said to increase crash risk in circumstances where drivers were already operating under a heavy cognitive load. Secondly, given the cognitive load to which a driver would be exposed, a bespoke dwell time is required. The dwell time advanced is one derived from the application of the formula set out above in the Austroads Guide to Traffic Management, Part 13.
- [38]I am satisfied the two points advanced by Council should not be accepted.
- [39]I reviewed the three vehicle movements of concern. I do not accept they will be adversely impacted, in safety terms, by an involuntary glance to the proposed billboard. Nor do I accept that the application of the Austroads formula produces a different result to that contended for by the appellant. This is so for the following reasons.
- [40]As a starting point, the glances about which there is concern would be fleeting, that is, less than one second in duration. This is important context because in the case of at least two of the movements to be considered, the speed at which a vehicle would be travelling through the intersection would be much slower than 70 kilometres per hour. This is because it would be executing a lefthand turn, potentially into the line of oncoming traffic.
- [41]The three movements were referred to in the evidence as Movement A, F and G. As will be seen in a moment, the movements the subject of focus are not complex. They are, in fact, low speed, predictable and routine. They are all executed in an intersection that has good sightlines and a sound crash history. That history does not, as I have already said, suggest road safety is compromised or trending towards an unacceptable level of risk of collision.
- [42]Movement A is a left turn from Beaudesert Road (south approach) to the Paradise Road west departure. No crashes have been recorded for this movement, which requires a vehicle to leave the outermost lane of Beaudesert Road to enter a lefthand turn land. The lefthand turn lane terminates at the intersection with Paradise Road. The lefthand turn is not signalised; there is a give way arrangement. Before reaching the give way point, a pedestrian crossing is present in the lefthand turn lane. It enables pedestrians to cross from the verge of Beaudesert Road over the lefthand turn lane and onto a pedestrian refuge forming part of the signalised intersection.
- [43]I accept Mr Davidson’s evidence that the lefthand turn and the adjacent intersection is a typical design consistent with the relevant standards and would present as familiar to a motorist. The sightlines are also clear, including towards oncoming traffic from Fox Road or Beaudesert Road.
- [44]A driver executing Movement A will be confronted with several decision points where the proposed sign may come into view. The first decision point is when the driver leaves Beaudesert Road to enter the left turn lane. The second point is at the pedestrian crossing. The third point is at the give way line marking, where the driver must look to the east to observe oncoming traffic. A helpful photo depicting these decision points was included in the traffic joint report. It shows a driver executing Movement A will see the proposed sign in the primary field of view when leaving Beaudesert Road to enter the turning lane and at the point the pedestrian crossing is reached. A driver looking east to observe oncoming traffic will not have the billboard in their primary field of view unless looking straight ahead.
- [45]Mr Trevilyan made the point that the driver executing Movement A would experience a high cognitive load; that is to say, the driver is confronted with a number of decisions and potential conflict points which must all be taken into account to safely navigate the intersection. This can be accepted. The point made was that distracting the driver while experiencing this cognitive load (by way of an involuntary glance to the proposed digital billboard) increases the risk of a bad decision, leading to a crash or collision. Again, as a general proposition, this can be accepted.
- [46]While Mr Trevilyan’s opinion about Movement A has some superficial attraction, it is my view that the potential distraction for a driver executing Movement A by reason of a change in content on the billboard has been significantly overstated. There is, in my view, a risk that a driver completing a left turn from Beaudesert Road will be distracted by the digital sign, but that risk is low, as are the potential consequences of distraction. There are a number of factors that suggest a driver would have ample time, even despite an involuntary glance, to take corrective action in any event. The factors that suggest this are as follows: (1) any glance or distraction would be fleeting; (2) the speed of travel for a vehicle executing Movement A will be much slower than 70 kilometres an hour, providing greater reaction time – the geometry of the intersection simply would not permit the lefthand turn to be completed at anything like the signed speed limit; (3) the movement to be executed is not peculiar, rather, it is predictable – it is an approach to, and a lefthand turn with care, executed in a lower speed environment with good sightlines; (4) inbound volumes of traffic onto Paradise Road will be low, meaning potential conflict with oncoming traffic is low, and (5) the billboard would be, for the most part, in the driver’s principal field of view – the glance would not require a driver to necessarily turn his or her head away from the principal field of view. Once these matters are appreciated, I am comfortably satisfied a driver executing Movement A would be able to correct course, or take evasive action, to avoid a crash, in circumstances where he or she had been distracted by a change to the content of the proposed sign. The distraction would be fleeting in time. There is, as a consequence, no feature of Movement A, in my view, that calls for dwell times longer than those proposed by the appellant, which comply with technical standards promulgated by Council and the Department of Transport and Main Roads.
- [47]Movement F is a lefthand turn from Fox Road to Beaudesert Road (heading south). There is no crash history for this movement, which involves a vehicle entering a lefthand turn lane on Paradise Road. The lefthand turn is not signalised; it is a give way arrangement. At this point, the driver is giving way to substantial volumes of traffic on Beaudesert Road heading south. The driver has clear sightlines. Visibility to oncoming traffic exceeds 200 metres. In many instances, the driver will be travelling at low speed, if not stationary, waiting for a gap in traffic on Beaudesert Road.
- [48]The driver of the vehicle executing Movement F would have two key viewpoints. First, the driver would have to be aware of any car in the lefthand turn lane ahead of it. Second, the driver would need to have a view of oncoming traffic on Beaudesert Road, which is continuing straight through the intersection in a southbound direction or coming from Paradise Road (a right turn). In either the case, the billboard would not be in the driver’s primary field of view.
- [49]In my view, there is a small chance that a driver completing Movement F would be distracted by the digital sign. This is because the driver’s principal focus will be shifting, and the sign may come into the driver’s peripheral vision. However, sightlines are clear; they exceed 200 metres. The driver will be looking for sufficient gaps in the traffic to select an appropriate gap. This is the task at hand. An involuntary glance towards the digital sign, which would be fleeting, would not, in my view, be sufficient to distract the driver from the primary task. Indeed, the vehicle may be stationary, waiting to execute the turn, or it might even be driving at very low speed. In either case, there would be time for the driver to adjust for a fleeting distraction and make an appropriate decision to avoid a collision. This means, in my view, there is no movement or feature of Movement F that calls for dwell times longer than those proposed by the appellant which, again, comply with relevant technical standards promulgated by Council and the Department of Transport and Main Roads.
- [50]Movement G involves a vehicle travelling on Paradise Road prior to arriving at the intersection. The point of focus is where Paradise Road dog legs from a north easterly direction so as to head east. One crash is recorded at this location. The billboard is visible in the driver’s primary field of view, but looking across its face rather than straight at any content. Mr Trevilyan pointed out that the recorded crash occurred as a result of a single vehicle travelling in the northbound direction and running off the road at the dog leg where the sign proposed will be visible.
- [51]To address this movement, the appellant accepts it would be appropriate to impose conditions that require works to be undertaken to improve this part of the road network. The site inspection confirmed this is a prudent course, given its current construction is confusing. Mr Davidson recommended specific works. He suggested the corner be updated to include appropriate advisory and warning signage and extended curb and channelling. The specific works recommended are set out in paragraph 119(h) of the traffic joint report. I accept these works should be conditioned as part of an approval.
- [52]As I have already observed, the evidence with the benefit of a site inspection makes good the point that the part of the road network relevant to Movement G has the potential to confuse drivers. At the point of the dog leg, there appears to be the projection of a service road which heads directly towards the existing sign and the location of the proposed sign. A driver may be confused as to whether to drive straight ahead or veer right at the dog leg. The introduction of the works suggested by Mr Davidson will, in my view, adequately address this confusion. It will also have the result that any complication or difficulty associated with Movement G is appropriately mitigated. The mitigatory works, in conjunction with the dwell time proposed by the appellant will, in my view, be more than sufficient to mitigate the risk of driver distraction and potential crashes at this location in the road network.
- [53]Turning to the formula point, Council’s case relies upon Mr Trevilyan’s evidence. His evidence focused upon, in large measure, the application of the Austroads formula to state dwell times for the conditions advanced by Council. For completeness, I wish to record I was not persuaded to act on Mr Trevilyan’s evidence. In short, this is because he appeared to overstate the complication, if any, associated with the execution of Movements A, F and G, including the associated cognitive load. He also, in my view, appeared to apply the Austroads formula with an alarming level of zeal. This manifested in the length of the dwell time calculated. In the case of the south facing panel, it was as high as 200 seconds. While the formula is one tool that I accept may be used to inform the assessment to be carried out, it is far from determinative for no other reason than, as Mr Trevilyan recognised, it has its limitations. The formula is, after all, a mathematical construct that should be used to inform engineering judgment rather than take on such weight as to be a substitute for it. Mr Trevilyan’s evidence placed far too great a weight on the application of a formula. He did so in circumstances where the dwell times proposed by the appellant complied with the technical standards promulgated by two road authorities, namely Council and the Department of Transport and Main Roads.
- [54]It is unnecessary, however, to be too concerned about this, because even if a contrary view was taken about the formula applied by Mr Trevilyan, its application to the southbound face of the billboard does not yield a different result from that advanced by the appellant in any event. If it is assumed that the purpose of the formula is to derive a dwell time that limits the number of drivers exposed to message or content changes on the billboard to a proportion of less than one, Mr Davidson’s evidence demonstrates this can be achieved. In his further statement of evidence, he calculated 68% of drivers would be exposed to a content change or message change, assuming a viewing distance of 330 metres and a dwell time of 25 seconds. I accept this calculation. The proportion is ‘much less’ than 100%, which is the stated goal for the use of the formula.
- [55]I am satisfied a dwell time of 25 seconds for the south facing panel, in conjunction with the suite of conditions proposed (particularly those set out above with respect to content and the way in which messages or images change from one to the next) will maintain road safety to an acceptable level. This can be achieved without imposing the dwell times contended for by Council, which, in my view, stand in stark contrast to its own technical standard.
- [56]In the result, I am satisfied an approval granted subject to the conditions proposed by the appellant will ensure the proposed digital billboard is designed, located and operated to, amongst other things, maintain road safety to an acceptable level. Orders are, therefore, made in accordance with the draft approval package sought by the appellant.