The case of Bishopp Outdoor Advertising Pty Ltd v Moreton Bay Regional Council [2023] QPEC 19 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Moreton Bay Regional Council (Council) to refuse a development application for a development permit for operational work for an advertising device on the traditional main street of Caboolture, being 44 King Street (Land).

The proposed advertising device comprises two sign faces that are 10.26 metres high and 4.6 metres wide, and will project to the northbound and southbound traffic along Morayfield Road (Proposed Development). Morayfield Road is a multi-lane divided arterial road with a 60-kilometre per hour signed speed limit with a four-way intersection that relevantly includes the following features:

• A northbound long-shared left-turn cycle lane into the perpendicular Elliot Street (Cycle Lane).

• A left-hand through lane that continues northbound through Morayfield Road.

• Parallel footpaths adjacent to each side of Morayfield Road.

The Land is generally included within the Centre Zone under the Moreton Bay Regional Council Planning Scheme 2016 (version 6) (Planning Scheme), and the Proposed Development is to be assessed against the assessment benchmarks in the Advertising Devices Code (Code). It was agreed between the parties that the Proposed Development does not comply with the Requirements for Accepted Development RAD 2, 3, and 8 of the Code, and is therefore code assessable pursuant to section 5.3.3(1)(a)(ii) of the Planning Scheme (at [6]).

The agreed list of issues were as follows (at [10]):

"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.

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."

The Court held that the Proposed Development complies with the assessment benchmarks relevant to amenity and streetscape, but was not satisfied that there would be no unacceptable traffic safety risks in respect of overall outcome 2(e)(ii) and performance outcome PO6 of the Code.

The Council argued that the Proposed Development will have unacceptable impacts on character and amenity for the reason that it will (at [15]):

"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."

The Court rejected the Council's arguments in respect of character and amenity and held that the Proposed Development complies with all relevant assessment benchmarks for the following reasons:

1. The Proposed Development is not overbearing or visually dominant for the following reasons:

(a) It is "…set back both from Elliott Street and from the existing building on the site" (at [19]).
(b) As conceded by the Council's town planning expert in cross-examination, it "…at its highest point, does not significantly protrude above the rooftops of buildings of adjoining sites…" and "…would not be overly dominant in terms of scale when seen in the context of the other buildings" (see [19] to [20]).
(c) It "…would not be any more overbearing to pedestrians than the existing buildings" (at [21]).

2. The Proposed Development does not contribute to visual clutter for the reason 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" (at [25]). The Court preferred the evidence of the Applicant's town planning expert who "…helpfully illustrate[d] the difference between a cluttered environment and what pertains in the subject site, in his individual report" (at [26]).

3. The Court rejected the approach of the Council's experts in their assessment of character and amenity for the reason that the experts premised their evidence from an "adverse starting point" to reach an "adverse conclusion" (see [27] to [30]). The Court held 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" (at [31]).

4. For the same reasons above, the Court held that there is "…nothing about the streetscapes or landscapes surrounding the subject site, which would render the subject sign incompatible" (at [32]).

The Council argued that the effect of the Proposed Development on the northbound traffic will result in an unacceptable traffic safety risk and diminish the efficiency of a State controlled road in contravention of the Code (at [10]).

Firstly, it was opined by the Applicant's psychology expert with expertise in traffic safety that drivers merging into the Cycle Lane may be distracted by the Proposed Development (at [38]). The Court agreed with the expert's opinion that this risk could be mitigated by a condition that would limit advertisement transitions (at [39]).

The Council argued that the Proposed Development will interfere with a driver's detection of pedestrians who travel across the Cyle Lane at a designated pedestrian crossing (at [40]). The Court rejected this argument and preferred the opinion of the Applicant's traffic expert that a driver will be aware of the crossing and any pedestrians since they are required to wait seven seconds before deciding whether to proceed over the pedestrian crossing (at [41]).

The final argument submitted by the Council was that the Proposed Development "…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" (at [42]). The Court agreed and held that the Proposed Development would cause backgrounding to a primary signal and create a traffic safety issue in contravention of overall outcome 2(e)(ii) of the Code which requires that an advertising device does not confuse or distract motorists, particularly in proximity to intersections or other complex traffic environments, and performance outcome PO6 of the Code which requires that advertising devices do not adversely impact on the safety and efficiency of the State controlled road. The Court's reasons were as follows:

• The Court rejected the Applicant's argument that northbound motorists can rely on other non-primary traffic signals or the behaviour of other vehicles for critical decision making for the reason that "[i]t does not seem…to be an appropriate or adequate response to a concern about the safety issues…" (see [43] to [44]).

• The Court preferred the methodology of the Council's traffic expert who accounted for varying speeds of vehicles as opposed to exclusively the speed limit (see [52] to [53]). This methodology evidenced that slower motorists will be more likely to be making critical decisions closer to the intersection, and therefore with a reduced reaction time, in a position affected by backgrounding from the Proposed Development (see [51] and [52]).

• The Applicant argued that the Proposed Development could be conditioned to comply with overall outcome 2(e)(ii) and performance outcome PO6 of the Code by restricting colours of advertisements to not be similar to those used in traffic signals, citing the case of Ogna Group Pty Ltd v Logan City Council [2021] QPEC 41 (see [46] to [47]). The Court distinguished the case on the basis that it was not related to backgrounding issues and rejected the condition. The Court relevantly stated that "…[i]t seems…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" (at [48]).

• The Applicant's traffic expert "…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" (at [49]). The Court rejected the Applicant's argument that it should then instead take the "management-focused" position of the psychology expert and held that "…when it comes to matters of safety, an appropriately conservative approach should be taken" (at [50]).

The Applicant conceded that if the Court held that the Proposed Development did not comply with relevant traffic safety assessment benchmarks, then there are no discretionary reasons to allow the appeal (at [54]). The Court therefore dismissed the appeal.