Queensland Planning and Environment Court allows an appeal against the refusal of a development application for an advertising device

In brief

The case of Odna Group Pty Ltd v Logan City Council [2021] QPEC 41 concerned an appeal by Odna Group Pty Ltd (Applicant) to the Planning and Environment Court of Queensland (Court) against a decision by the Logan City Council (Council) to refuse a code assessable development application for a development permit for operational work to erect an advertising device (Application) in Springwood, Queensland. 

The Court allowed the appeal, set aside the Council's decision, and approved the Application subject to conditions to be determined at a later hearing.  

Background

The Application was for an advertising device, with a single-sided electronic display, on top of an existing three storey commercial building located at 3-5 Westmoreland Boulevard, Springwood.  The proposed sign would be 15 metres wide and five metres high, and would be orientated to face southbound traffic on the Pacific Motorway.  

The Application was code assessable against the Logan Planning Scheme 2015 (version 7) (Planning Scheme). The key issue on appeal was whether the proposed development complied with the provisions of the Advertising Device Code (Code) relating to the safety of the movement network and protection of the visual amenity of the surrounding area. 

Advertising device would not affect the safety of the movement network

The Council argued that the advertising device would distract drivers, and therefore did not comply with the following provisions of the Code:

• "The purpose of the code is to:…b. maintain the safety of the movement network" (sub-paragraph 1(b) of the statement of purpose of the Code). 
• "An advertising device is designed and located to:…ii. not adversely affect the safe function and operation of the movement network" (sub-paragraph 2(a)(ii) of the Code).
• "An advertising device is designed and located…b. to be safe for pedestrians, cyclists and vehicular traffic; c. to not distract motorists so as to cause a traffic hazard" (PO1(b) and PO1(c) of the Code).  

It was common ground that the proposed development did not comply with the acceptable outcomes for PO1 of the Code. Consequently, the issue was whether the proposed development nevertheless complied with the performance outcome or the purpose and overall outcomes of the Code. 

The Court ultimately accepted that the advertising device complied with PO1 and the purpose and overall outcomes of the Code. In particular, the Court concluded that approval could impose appropriate conditions to avoid the advertising sign being unduly distracting. The Court gave examples at [19] of conditions which could be imposed on any approval, including for example:

• A condition could be imposed to the effect that there is to be no animation, flashing, motion, or any effect that creates the illusion of movement.  
• A condition could be imposed to the effect that there is to be no flashing, blinking, revolving, or intermittent lights and that the sign has a dark display or turn off in case of failure. 
• A condition could be imposed to the effect that there is to be no dwell time to limit the number of message changes that drivers are exposed to.    
• The advertising device not be shaped or coloured like an official traffic control device.  

Advertising device would not adversely impact the visual amenity of the surrounding area

The Council argued that the advertising device would adversely affect the visual amenity of the surrounding area, and therefore did not comply with provisions of the Code, including that the advertising device be "designed and located…to be compatible and visually integrate with the built form and streetscape…" (PO1(a) of the Code) and "not create visual clutter" (PO2 of the Code).  

In describing the visual amenity of the surrounding site, the Court had regard to the joint expert report prepared by the visual amenity experts. In particular, the joint expert report noted that the "immediate locality is generally dominated by the presence of the Pacific Motorway and the commercial development…" (see [92]).

The Court ultimately accepted that the proposed development complied with the Code and would not have any material adverse impact on the visual amenity of the motorway or surrounding locality. In particular, the Court accepted evidence to the effect that the advertising sign was compatible with the existing building and streetscape and did not cause visual clutter, because the existing building was relatively plain and did not compete with the advertising sign from a visual perspective.  

Court's discretion to approve development despite non-compliance

The Court noted that section 60(2) of the Planning Act 2016 (Qld) (Planning Act) contains a "discretion to approve a code assessable development application even where it does not comply with all of the relevant assessment benchmarks." (at [118]). However, the Court concluded that it was unnecessary to consider the extent of that discretion in this case given its findings in respect of compliance with the Planning Scheme.  

The extent of the Court's discretion to approve code assessable development despite non-compliance with the relevant assessment benchmarks has yet to be explored by the Court. Future discussion on the limits of this discretion will likely give weight to the fact that the Planning Scheme is the embodiment of the public interest. Furthermore, it will need to be borne in mind that the exercise of any residual discretion under section 60 of the Planning Act is not an opportunity to effectively turn a code assessment, into an impact assessment, for which there are separate requirements under the Planning Act. 

Conclusion

The Court concluded that the proposed development complied with the Code, subject to the imposition of conditions. On that basis, the Court ordered that the Application ought to be approved with the content of the conditions to be determined at a later hearing.