Bishopp Outdoor Advertising Pty Ltd v Moreton Bay Regional Council [2023] QPEC 19 (2024) QPELR 815

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Bishopp Outdoor Advertising Pty Ltd v Moreton Bay Regional Council [2023] QPEC 19 PARTIES: Bishopp Outdoor Advertising Pty Ltd (Appellant) v Moreton Bay Regional Council (Respondent) FILE NO/S: 2378/2022 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 18 May 2023 (Ex tempore) DELIVERED AT: Brisbane HEARING DATE: 26, 27 and 28 April 2023; 12 and 18 May 2023 JUDGE: Rackemann DCJ ORDER: The appeal is dismissed. CATCHWORDS: ENVIRONMENT AND PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondent had refused an application for a development permit for operational work to place an advertising device on land at Caboolture – where the land is bounded by roads on three sides – where the proposed sign is to be erected in what is presently the carpark on the land – where a changeable internally illuminated sign would be visible to northbound traffic along Morayfield Road and a non-changeable internally illuminated sign would be visible to southbound traffic along Morayfield Road – whether the presence, scale, size, location, height, design and placement of the proposed advertising device will adversely impact upon the character, amenity and streetscape of the immediate and wider locality – whether the proposed advertising device will result in an unacceptable traffic safety risk or diminish efficiency of a State controlled road – whether the proposed advertising device will result in no adverse impacts upon adjoining premises – whether any non-compliance can be addressed through the imposition of conditions or calls for -- 1 of 18 -- 2 refusal of the proposed development, in the exercise of the Court’s discretion. COUNSEL: KW Wylie for the Appellant. M Batty and J Bowness for the Respondent. SOLICITORS: Mullins Lawyers for the Appellant. Moreton Bay Regional Council legal services division for the Respondent. -- 2 of 18 -- 3 [1] This appeal is against the respondent’s decision to refuse an application for a development permit for operational work to place an advertising device on land at 42 to 44 King Street, Caboolture, and more particularly described as lot 1 on SP142146. The land is regularly shaped and bounded by roads on three sides, being King Street to the north, Morayfield Road to the east, and Elliott Street to the south. The first two of those are state-controlled roads. There is presently a two-storey commercial building on the land, orientated towards the King Street frontage. An open-air car park is located at the rear of the existing building which gains access from Elliott Street. The car park, as well as the land in general, slopes up from Elliott Street towards King Street. King Street is the traditional main street of the town. [2] The proposal is to erect a freestanding pylon sign, comprising two separate sign-faced areas, in what is presently the car park on the land, some 0.7 metres from the Morayfield Road boundary. The two sign faces join at an approximately 53-degree angle, such that a changeable internally illuminated sign is visible to northbound traffic along Morayfield Road, which will digitally display third party advertising, and a non-changeable internally illuminated sign, displaying tenant details, is visible to southbound traffic along Morayfield Road. The proposed sign will be 10.26 metres high and 4.6 metres wide with a total sign face area of 59.44 metres. [3] Morayfield Road is a multi-lane divided arterial road with a 60-kilometre per hour signed speed limit. It has an all-turns signalised four-way intersection with Esme Avenue and Elliott Street. Roadworks were completed in September 2021 at the intersection resulting in an extension of the northbound right-turn lane on Morayfield Road and modified traffic signal phasing to provide, relevantly, a late start for left turns into Elliott Street. Concrete pedestrian footpaths are provided on both sides of Morayfield Road past the site and to the south of the intersection. A long-shared left- turn cycle lane is located on the far left of the northbound carriageway, south of the intersection. [4] The proposed development is categorised as accepted development subject to requirements, pursuant to the respondent’s planning scheme as in force at the time the development application was made. Development categorised as accepted development subject to requirements must comply with the requirements for accepted development (RADs) identified in the assessment benchmarks for assessable development and requirements for accepted development column or its development -- 3 of 18 -- 4 category may change. Pursuant to section 5.3.3(1)(a)(ii) of the Planning Scheme, unless specifically indicated otherwise, accepted development that does not comply with one or more of the nominated RADs, becomes code assessable development. [5] The assessment benchmarks for the proposed developments are limited to the Advertising Devices Code. Section 9.4.4.3 of the Advertising Devices Code is headed Requirements for Assessment. It states: If development is to be categorised as accepted development subject to requirements, it must comply with the requirements for accepted development set out at Part A table 9.4.4.1. Where development does not meet a requirement for accepted development (RAD) within part A table 9.4.4.1, the category of changes to assessable development under the rules outlined in section 5.3.3(1), and assessment is against the corresponding performance outcome (PO) identified in the table below. This only occurs where a RAD is not met and is therefore limited to the subject matter of the RADs that are not complied with. To remove any doubt for those RADs that are complied with, there is no need for assessment against the corresponding PO. [6] It is agreed by the experts that the proposed development does not comply with RAD 2, 3 and 8 of the Advertising Devices Code. The corresponding assessment benchmarks are PO1 and PO6. Accordingly, the proposed development becomes code assessable pursuant to section 5.3.3(1)(a)(ii) of the Planning Scheme. Part B of the Advertising Devices Code applies only to assessable development and provides the criteria for assessable development. It includes the criteria set out in table 9.4.4.2 as well as the purpose statement and overall outcomes of the Code. [7] Code assessable development that complies with the purpose and overall outcomes of the code identified in the assessment benchmarks for assessable development and requirements for accepted development column complies with that code. Code assessable development that complies with the performance outcomes or their corresponding examples complies with the purpose and overall outcomes of the code. [8] For code assessment under the Planning Act, the assessment manager, and on appeal, this Court, must carry out the assessment only against the assessment benchmarks in -- 4 of 18 -- 5 the categorising instrument for the development, and having regard to any matters prescribed by regulation. By virtue of section 60(2) of the Planning Act, the assessment manager, and on appeal, the Court, after carrying out assessment, must decide to approve the application, to the extent the development complies with all of the assessment benchmarks for the development, may decide to approve the application even if the development does not comply with some of the assessment benchmarks, may impose development conditions on approval, and may, to the extent the development does not comply with some or all of the assessment benchmarks, decide to refuse the application only if compliance cannot be achieved by imposing development conditions. [9] The Court stands in the shoes of the assessment manager by conducting a hearing anew of the development application. The Court may confirm or change the decision appealed against or set it aside and either replace it or remit the matter to the council. The appellant bears the onus in the appeal. [10] On the first day of the hearing, an agreed list of issues in dispute was tendered. The issues are as follows: 1. Whether the present scale, size, location, height, design and placement of the proposed advertising device will adversely impact upon the character, amenity and streetscape of the immediate and wider locality, contrary to Advertising devices code: (a) Overall outcomes 2(a), (b) and (c); and (b) Performance outcome PO1(a), (b), (c) and (d). 2. Whether the proposed advertising device will result in unacceptable traffic safety risk or diminish efficiency of a State controlled road contrary to Advertising devices code: (a) overall outcome 2(e)(ii) and (b) performance outcome PO6. -- 5 of 18 -- 6 3. Whether the proposed advertising device will result in no adverse impacts upon adjoining premises, consistent with the Advertising devices code Overall outcome 2(a) and (e) and performance outcome PO1(e). 4. Whether any non-compliance: (a) can be addressed through the imposition of conditions; or (b) calls for refusal of the proposed development, in the exercise of the Court’s discretion. [11] The relevant benchmarks in dispute as referred to in those issues are as follows: 2. The purpose of the Advertising devices code will be achieved through the following overall outcomes: (a) The presence scale, size and placement of advertising devices does not adversely affect upon the character, amenity of the immediate and wider locality and does not result in visual clutter; (b) The presence scale, size and placement of advertising device is consistent with the character of the existing or proposed streetscape; (c) The presence scale, scale, size and placement of advertising devices is compatible with the design of a building and does not appear visually dominant or overbearing; … (e) The advertising device is safely secured and does not: … (ii) confuse or distract motorists, particularly in proximity to intersections or other complex traffic environments; … [12] As to the performance outcomes, performance outcome 1 is (relevantly) that advertising devices are of an appropriate number, type, design, scale, height and location to (a) not contribute to visual clutter or be overbearing or visually dominant; (b) complement the existing and future planned character and amenity of the area in which it is located; (c) maintain a human scale and not detract from or interfere with -- 6 of 18 -- 7 the form and function of a pedestrian friendly environment; (d) be compatible with the surrounding streetscape and the landscape. Advertising devices should be considered as another design element, which integrate with the architecture, scale, proportions and style of buildings, landscaping, structures and other advertising devices located both within and surrounding the site; (e) minimising any potential adverse impacts on adjoining sites such as overshadowing or loss of key views and view corridors. [13] PO6 is that advertising devices do not adversely impact on the safety and efficiency of the state-controlled road. [14] I will deal with the amenity issues first. They are the first and third of the issues from the list of agreed issues. [15] At the conclusion of the case, it was submitted on behalf of the respondent that the proposal would have unacceptable impacts on character and amenity because the proposal would: 1. be overbearing and visually dominant; 2. contribute to visual clutter; 3. not complement the existing and future planned character and amenity of the area in which it is proposed to be located; and 4. by reason of its visual dominance and disparate scale be incompatible with the surrounding streetscape and the landscape. [16] As will have already been seen, the provisions, or at least some of them, make reference to not only the existing situation, but the future. That was relied upon, to some extent, by the appellant, in that the planning scheme envisages that there will be taller buildings in the future, which will tend to put the relative scale of the proposed sign in a somewhat different light, and which is favourable to the appellant’s case. The respondent referred to the provisions which contemplate further development in the future to suggest that development of the centre, of which the subject land forms a part, could potentially be delayed in part, by reason of the existence of the proposed sign, if it proceeded. That is quite a speculative concern. -- 7 of 18 -- 8 [17] It was noted by the respondent’s town planner that the intention for there to be further development of the city centre has been around for a long time, and the change is not one which is occurring in a short time frame. In the circumstances, it was suggested that one would put more weight on the existing situation and the appellant has no difficulty on its case with addressing the current circumstances. [18] The contentions of the respondent are consistent with the opinions of Dr McGowan and Mr Mewing, but contrary to those of Mr Butcher and Mr Forsyth. It has already been noted that the site in question sits at the intersection of Morayfield Road and Elliott Street. Indeed, it sits on the north-western side of that intersection. The intersection marks a change in zoning, with the land to the north of the intersection, including the subject land, generally in the centre zone and within the Caboolture centre precinct, and land to the south generally in the recreation and open space zone. This change of zoning reflects the change in land use and character, with parkland to the south of the intersection and the Caboolture town centre to the north. The site is also designated as a prominent site. [19] I do not consider that the proposed sign would be overbearing or visually dominant. As Mr Butcher pointed out in the joint report, the proposal is set back both from Elliott Street and from the existing building on the site. It certainly would not be dominant from the Elliott Street streetscape. Otherwise, as Mr Butcher pointed out and Dr McGowan accepted in cross-examination, the sign, at its highest point, does not significantly protrude above the rooftops of buildings of adjoining sites, except when one views it from close proximity to the intersection. Even Dr McGowan accepted in cross-examination that from a height perspective, there was a degree of compatibility. [20] Whilst different in nature to a building, the advertising sign is obviously of a smaller bulk when compared with the existing buildings in the area. And Dr McGowan conceded that it would not be overly dominant in terms of scale when seen in the context of the other buildings. While the respondent sought to make something of the height of the proposal as being equivalent to a three-storey building where other development existing at the moment is of one to two storeys, it seems to me that, in view of the concessions that have been made, it could not reasonably be said that the sign would be unduly overbearing or visually dominant. I accept the views of Mr Butcher, in particular, in that regard. -- 8 of 18 -- 9 [21] Mr McGowan considered that there would be some overbearing, in particular, for pedestrians passing the site. Those pedestrians must use a path that leads from a set of stairs proximate to the intersection up to King Street, running beside the existing building, from which there is a zero setback. Whilst in his report, Dr McGowan described that as a pedestrian-friendly environment, perhaps with PO1(c) in mind there is, in fact, not much to recommend it. The stairs are not suitable for equitable access. The pathway has no shading or street trees. And it passes, as I have said, immediately up the side of the two-storey building which is on the subject site. Ultimately, in cross-examination, Dr McGowan conceded that, apart from being separated from the road, it offers not much amenity otherwise. When it was put to him that the sign would not be any more overbearing than existing buildings for the pedestrians walking up the pathway, he agreed that the difference would not be chalk and cheese. [22] There was some discussion of human scale, something which is referred to in a performance outcome, although not, I note, in the overall outcomes. It is a concept which is somewhat vague and uncertain in its application in the context of pylon signs. It certainly does not mean that the sign must approximate the height of a human being. I accept that it is more concerned with how a human appreciates or comprehends the size and scale of the sign. Whilst I do not consider that the proposal fails in this regard, Dr McGowan did acknowledge that horizontal bands of colour – which could be the subject of conditions of an approval – could be applied to assist in this regard. Such conditions would also achieve a greater degree of compatibility with the existing building. [23] Visual clutter is something which is dealt with in the planning policy in clause 4.2 as follows: The overall amount of advertising devices in relation to the streetscape and the cumulative effect of many devices can create visual clutter and detract from the existing and future planned character and amenity of an area. A proliferation of advertising devices on any site should be minimised in order to avoid visual clutter, duplication of the same advertisement message, visual distractions for road users, and adverse impacts on the amenity of the streetscape and environment. -- 9 of 18 -- 10 [24] It has already been noted that, on the uphill face of the proposed advertising sign, there is proposed to be a lit area to advertise the tenants of the building. The consolidation of the advertising for those tenants on one side of the one sign would, it would seem, be the antithesis of proliferation. [25] The planning scheme policy, in addition to the passage just quoted, goes on to say that what will constitute clutter will differ depending upon the location. It says, however, that clutter will result where there is an overabundance of advertisements, placed on a single device, location or site. In this case, there are some other signs in the locality. That is hardly surprising, given the location of the site within the centre. It seems to me, however, that the existing signage is not such that the addition of the subject sign would result in any material or adverse clutter of any significance. [26] I note, in this respect, that even Dr McGowan, who thought that there would be a disorderly assemblage said that that would be “at the lower end of the scale, if I can put it that way”. Mr Forsyth, whose opinions in this regard I accept, helpfully illustrates the difference between a cluttered environment and what pertains in the subject site, in his individual report, in which he compared a photograph of the subject site to the examples of clutter given in the town planning policy. [27] The next issue relates to character and amenity. It seems to me that the adverse conclusion of Dr McGowan on this topic is likely affected by his adverse starting point. In particular, in the discussion of relevant issues in the visual amenity joint report, Dr McGowan’s first statement is that: As far as character, scenic amenity and sense of place are concerned, advertising signage is typically considered to be detrimental to these qualities. [28] Having started in that way, it is perhaps unsurprising that he proceeded to reach an adverse conclusion after observing that the sign would be a substantial structure that would be prominent and the only one of its kind in the locality. I do not think that one should start from the premise that an advertising sign, being a pylon sign, is necessarily inappropriate from a character perspective in a centre simply because it has some visual prominence and that there are currently no other pylon signs. -- 10 of 18 -- 11 [29] In cross-examination, Dr McGowan accepted that not only does the Caboolture town centre – or at least the relevant part thereof – have a reasonably low amenity in a visual sense, but that its character is commercial, and that being in a centre, there is an expectation of signage. And that indeed, signage forms an important part of the character of many centre zones and a part of the overall built environment landscape within centres. [30] Mr Mewing’s analysis appears to have been affected by his view, expressed in his separate trial report, that the planning scheme prefers signage to be part of an existing or proposed building, rather than constructed as a standalone pylon structure. In submissions, counsel for the respondent acknowledged that Mr Mewing was wrong to think that way. [31] It seems to me that if one starts from the premise that there is nothing inherently incongruous in a pylon advertising sign being erected in centre zoned land, then there is nothing about this sign which would have an undue impact upon the character, amenity or street character of the area. I prefer the views of Mr Forsyth and Mr Butcher to that effect. [32] The streetscape issue relied upon by the respondent is really to similar effect. As Mr Butcher pointed out, the sign is generously set back from Elliott Street, which minimises the visual impacts on the character of that streetscape. The Morayfield Road streetscape has no trees, a narrow grass verge, is elevated above the adjoining carpark on the land, in close proximity to the face of the existing building, which is built to the boundary and does not engage with the street edge except for minor interactions near King Street. I see nothing about the streetscapes or landscapes surrounding the subject site, which would render the subject sign incompatible. In short, for the reasons given, I am satisfied that, in relation to the matters of amenity and character that the proposal meets both the overall outcomes and the performance outcomes, albeit that compliance with both is unnecessary. [33] The remaining issue, then, relates to safety. In considering that issue, I have had the benefit of the evidence of two traffic engineers, namely Mr Pekol, who was called by the appellant, and Mr Douglas, who was called by the respondent, as well as Dr Roberts, a psychologist who has relevant expertise in relation to these matters and who was called by the appellant. The safety issue relates only to the digital side of -- 11 of 18 -- 12 the advertising device, and so is limited to vehicles approaching the intersection by travelling north on Morayfield Road. [34] The science concerning whether digital advertising devices potentially pose a safety risk, by altering driver behaviour, is not settled, but relevant experts are acting on the appropriately conservative assumption that there is a potential safety risk. That assumption is the obvious explanation for the provisions concerning safety in the Advertising Devices Code. The example to PO6 makes reference to the Roadside Advertising Manual of the Department of Transport and Main Roads. It features restriction areas for static electronic billboard advertising devices visible from state- controlled roads. The advertising device in this case would be within a restriction area. That is a likely explanation for the department’s advice in relation to this particular site. It should be noted, however, that the Road Advertising Manual does not create a blanket prohibition on advertising devices within such areas, but it has a preference for them being located outside of those areas. [35] Relevant to the safety risk are the demands that are on a driver otherwise when confronted with the advertising device. Various roads and road configurations have differing levels of complexity. Obviously, a straight road with no merging points and a relatively constant speed, with no intersection, represents a relatively undemanding road experience. Intersections can be more demanding. The joint report of the traffic engineers said: Digital roadside advertising devices add additional demands to the driving task and care is required in locating them to limit distraction potential where drivers’ attention is required on more important tasks. So the driving task is typically at its greatest when approaching and travelling through intersections, with signalised intersections requiring a motorist to not only observe, react and respond to more complex road user behaviour and the inherent increased risk of a collision with another road user, but also with having to observe, react and respond to changing traffic signals. [36] The proposal to locate an electronic advertising device in close proximity to the intersection is something which requires a deal of consideration. It should be added in this regard, that the Austroads billboard design criteria, that Dr Roberts was -- 12 of 18 -- 13 instrumental in formulating, gives guidance in relation to the longitudinal placement of advertising devices as follows: “Advertising devices should not be located in such a way that they might interfere with the effectiveness of a traffic control device (eg, by restricting sight lines or distracting from traffic control devices via proximity or as a background). Advertising devices should not be located so that they are visible at the approach to, or from, an intersection, pedestrian crossing, tram stop or in any location that is likely to be highly demanding of attention. Only one advertising device should be visible to drivers at any time.” [37] Dr Roberts, although being the primary author of that document, gave evidence to the effect that it is too strongly worded, in that it should only provide that there should be further consideration and assessment where an advertising device is going to be located such that it is visible at the approach to an intersection, rather than suggesting some blanket ban on advertising devices being visible in such a location. It is clear, however, that the location of the subject sign proximate to the intersection is something that requires consideration in relation to safety. There are three concerns that were raised from a traffic perspective. I will deal with each of them in turn. [38] The first was raised by Dr Roberts. At a point some distance from the intersection, motorists are able to merge into a left-hand left turn lane. That lane also is a cycle lane. Dr Roberts raised a concern that a driver who is performing that manoeuvre, which is an uncontrolled manoeuvre, might be distracted by the sign and thereby not properly keep under observation a cyclist or another vehicle during the merge. That has the potential for serious consequences, particularly given the relatively vulnerable position of a cyclist. [39] Whilst that would remain a risk, he was satisfied, however, that the risk could be appropriately mitigated by a condition of approval which would set an appropriate dwell time for the image on the electronic device, such that only a relatively small proportion of drivers would be able to see a change in the electronic screen when performing the manoeuvre. He has empirical evidence as to how small that proportion needs to be, in order to adequately mitigate the risk. In the circumstances, I am prepared to accept his evidence that conditions can adequately mitigate the risk -- 13 of 18 -- 14 such that that risk, considered in isolation, would not cause the sign to fail the overall outcome or the performance outcome. [40] The next concern was for pedestrians crossing at the intersection, potentially coming into contact with a vehicle in the left-turn lane, turning left. The arrangements for such movements were changed as part of the road upgrades. The situation is that a left-turning driver who arrives at a red light will be held at the stop bar for a delay of seven seconds whilst the pedestrians have a green light to cross. The red light will then disappear, allowing the car to complete its manoeuvre whilst pedestrians can still filter through. At some point leading up to the intersection, the vehicle which is going to turn left will see the primary traffic signal backgrounded by the electronic billboard. The issue of backgrounding I will deal with later when dealing with the last of the traffic concerns. [41] By the time the driver reaches the intersection, however, he will be able to see the pedestrians either waiting at the lights or indeed, already crossing, without any backgrounding by the billboard. The driver would either have been stopped with the red arrow, whilst the pedestrians commenced to cross, in which case, the driver will be very aware of the circumstances, or if the driver arrives at a time when the pedestrians have already started to cross, that is after the seven-second delay, the driver will be driving at a slow speed, given the radius of the turn, and will be able to see the pedestrians filtering across. It seems to me that, in those circumstances, that the traffic risk is very low and is acceptable for the reasons that Mr Pekol explained. [42] The final safety issue relates to vehicles heading north. And in particular, vehicles in the left-hand through lane. The concern arises there because Mr Douglas considers that the electronic billboard will be backgrounding one of the primary traffic signals at a time when the driver of the vehicle is making a critical decision in the approach to that intersection. The critical decision being a decision whether to proceed or to stop at the intersection. Mr Pekol approached the matter on the basis that the critical decision would be made far enough back, at a point where the backgrounding did not occur. I will return to that a little later. [43] The appellant has urged, however, that even on Mr Douglas’ case, backgrounding should not be a concern. That was said to be so for a number of reasons. One reason is because the Road Advertising Manual of the Department of Main Roads and -- 14 of 18 -- 15 Transport contains a provision that says that when electronic advertising devices are located where they will backgrounding traffic signals then target boards should be fitted to the signals. Target boards are a very common feature of traffic signals. The provision, as counsel for the appellant acknowledged, does not say that the backgrounding of traffic signals by advertising devices is satisfactory, subject only to the provision of target boards. And Mr Pekol, in particular, did not suggest that the target boards would be a remedy to the situation. [44] It was also pointed out that the backgrounding will only occur on one of the lights, and that there is a multiplicity of traffic signals at the intersection. That is quite true, and that was a matter that was pointed out by the experts called by the appellant. The signal that will be backgrounded, however, is one of the primary signals. It was pointed out that there is a reason why there is more than one primary traffic signal. That is to have a safety measure in case one of the other signals is malfunctioning. It does not seem to me to be an appropriate or adequate response to a concern about the safety issues arising from the backgrounding of a primary traffic signal, to say that one can rely upon other signals to overcome or to obviate the problem or to rescue the driver from any confusion that may be caused by the advertising device otherwise. [45] It was suggested that the real concern is for complex intersections and that this intersection is not complex because the manoeuvre that is the only manoeuvre which is of residual concern is simply driving up to the intersection and deciding whether to stop or not, which is a fairly simple manoeuvre. That is something which found support in the evidence of Dr Roberts. But it must be remembered that Dr Roberts’ evidence was also on the basis that the decision point would be back where Mr Pekol says, although he did, I acknowledge, also think that, in any event, any problem could be overcome by the imposition of conditions. [46] That is the subject of the last of the matters that were suggested as overcoming any problems that might arise by way of backgrounding. It was suggested that conditions could be imposed. Those conditions would be imposed to avoid any confusion which might arise by reason of, for example, a driver seeing an advertisement flash up on the screen behind the traffic signal, which is in green colours similar to a traffic light green, and mistaking that for a green traffic light symbol and reacting instinctively accordingly, instead of going by the traffic signals. A condition was suggested that -- 15 of 18 -- 16 the device ought not be able to be operated with colours that are similar to those in a traffic sign or traffic signals. [47] It was pointed out that in a case of Ogna Group Pty Ltd v Logan City Council [2021] QPEC 41 such a condition was imposed. That case, however, was not a case involving backgrounding, and any practical difficulties concerning such a condition was not a matter of debate in that case. It seems to me that when there is a particular concern about backgrounding being raised and particular importance is therefore being focused upon a condition like one that relates to the colours that are to be displayed on advertising devices, more careful consideration needs to be given to the operation of such a condition. [48] Ultimately, no precise mechanism in that regard was formulated by the appellant. It would call either for an assessment of each advertisement to be made by the council, which would place an administrative burden, or some assessment to be made on a sign-by-sign basis by the appellant or the operator of the sign themselves, in relation to a sign which is changing on an ongoing basis and where different signs are being displayed from time to time. It seems to me that reliance upon the proper compliance with and enforcement of, such a condition is fraught with some difficulty and I would be loath to rely upon it. [49] In any event, however, even if that was put to one side, the reliance on things like the other lights, cues from the behaviour of other vehicles, conditions in relation to what can be displayed, the target boards and the like are all matters which are imperfect ways of trying to address the problem of backgrounding – not that perfection is required – if indeed it is a problem, which is a matter I am about to address. That may be why Mr Pekol, in cross-examination, made it abundantly clear that he was not in favour of the sign if, indeed, critical decisions were being made whilst it backgrounded the relevant primary traffic signal. It seems to me that that was the appropriate position to take. [50] The appellants submitted that I should not adopt that position of its traffic engineer, but rather I should adopt the more management-focused approach of Dr Roberts. In support of that, they pointed out that Dr Roberts had a sound grasp of the distinction between distraction and confusion. It seems to me, however, that this is an area of science which is at the intersection of the expertise of the traffic engineers and experts -- 16 of 18 -- 17 such as Dr Roberts. The concern, which is one of the sign being placed behind, or in very close proximity to, the traffic lights, causing the driver to make a wrong decision, is one which is common, even if it was expressed differently. I consider that when it comes to matters of safety, an appropriately conservative approach should be taken. And I think that Mr Pekol did that, as did Mr Douglas, in approaching the matter ultimately on the basis of identifying whether critical decisions would be required to be made when the relevant primary signal is backgrounded by the proposed sign. [51] The final question, then, is whether a backgrounding would occur. The difference between Mr Pekol and Mr Douglas, in that regard, comes back to their approach to the matter. Each of them utilised Austroads, but in a different way. Mr Douglas comes up with a zone in which motorists might be making a critical decision. The most distant point of that zone is calculated or determined by reference to the approach sight distance calculated by Austroads for the relevant design speed – which in this case is taken to be 60 kilometres per hour – that is, some 73 metres. At that point, there is no backgrounding. That point approximates the point that Mr Pekol used, because he looked at the Austroads intersection design documents and, in particular, he looked at the traffic signals design, which shows an aiming point for stopping signal for an approach speed of 60 kilometres per hour of 80 metres. At that point there is no backgrounding. That is where Mr Pekol’s analysis finishes, because he says that Austroads does not require a design which takes account of anything other than the design speed. [52] What Mr Douglas does, however, is also look at a different approach sight distance assuming that vehicles, or some vehicles, might be travelling at a lesser speed down to 40 kilometres an hour, with a reduced reaction time. That, then, creates his range. As I have already noted, Mr Pekol dismisses that approach because, he says that a consideration of the lower speed is not required in design. [53] The difficulty I have with Mr Pekol’s approach, however, is that we are not here concerned with designing the intersection or the signals. What we are here concerned with is whether backgrounding a primary signal with an electronic advertising sign would, in fact, create a safety issue. Mr Pekol readily accepted that, in fact, for a range of reasons, people will, in fact, be making critical decisions at a point forward of the point he considered. In those circumstances, it seems to me that the fact that, -- 17 of 18 -- 18 for those people, or at least a proportion of them, this sign will be backgrounding a primary signal, is something which should not be ignored. [54] Accordingly, I have been left short of being satisfied that the proposal meets either OO2(e)(ii) or PO6. I do not consider that compliance can be achieved by imposition of conditions. Counsel for the appellant acknowledged that if I was against the appellant on the safety issue, then there are no discretionary reasons to approve, notwithstanding the noncompliance with those provisions of the code. Accordingly, the appeal is dismissed. -- 18 of 18 --