Advertising within transport corridors and on road areas is a common place form of development that is increasing and evolving. Digital technology encourages seamless and constant changes to advertising content with opportunities for dynamic advertising as opposed to static signage. Road safety has been at the forefront of the NSW State Government’s mind in considering this changing form of development. In late 2015 and early 2016 the NSW government publicly exhibited draft changes to the Transport Corridor Outdoor Advertising and Signage Guidelines. Those draft guidelines sought to respond to road safety risks presented by new technology signage with the addition of specific criteria for electronic signs in transport corridors. Transport corridors include certain land used, zoned or identified for rail or road infrastructure as well as certain land owned, occupied or managed by Roads & Maritime Services (RMS) or Sydney Trains.
This year the state government is proposing reforms to the State Environmental Planning Policy No. 64 – Advertising and Signage (SEPP 64) and the Environmental Planning and Assessment Regulation 2000.
Whilst the changes to SEPP 64 are not focused on new technologies per se, they do seek to promote driver safety through decluttering and better regulating signage in highly visible road and transport corridor lands. Principally, it is proposed to achieve this with the introduction of a new clause restricting advertisements on trailers parked on sensitive ‘road or road related areas’ and then again parked in slightly less sensitive areas where the trailer is visible from a ‘road or road related area’.
The definition of ‘road’, ‘road related area’ and ‘trailer’ is found in the Road Transport Act 2013. A ‘road related area’ is a broader category of land and is defined as:
(a) an area that divides a road, or
(b) a footpath or nature strip adjacent to a road, or
(c) an area that is open to the public and is designated for use by cyclists or animals, or
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or
(e) a shoulder of a road, or
(f) any other area that is open to or used by the public and that has been declared under section 18 to be an area to which specified provisions of this Act or the statutory rules apply.
The new proposed clause 27A(1) in SEPP 64 will prohibit the display of advertisements on trailers parked on a road or road related area. On land not within a road or road related area but visible from these areas, advertising on trailers parked on that land will be permitted under SEPP 64 with development consent. Breaching these new provisions will be a penalty notice offence for which an individual can receive a penalty notice for $1,500 and a corporation $3,000 under ancillary changes to the Environmental Planning and Assessment Regulation 2000. Council in determining development applications for trailer advertising must be satisfied of the matters outlined in clause 8 of SEPP 64 including the criterion in Schedule 1 which includes consideration of public road safety.
Exceptions are made to these new restrictions including, firstly, an advertisement ancillary to the dominant purpose of the trailer is excluded. This captures a large portion of advertisements including images, logos and branding on trailers used for transportation in the carrying out of a business’s day to day operations. Secondly, the restrictions do not apply to advertising on trailers where the trailer is parked by or on behalf of a public authority in the exercise of its functions.
The provisions, if effective, may help remove and restrict those trailer advertisements which seem to be permanently and purposefully parked on highly visible road ‘real estate’. Historically councils have had mixed success in dealing with trailer signage in the Courts. The state wide provisions may assist in providing a clear and consistent way of dealing with trailer advertisements. However, outside of ‘clear’ cases questions could be raised as to whether some ‘trailer advertising’ is indeed ancillary to the dominant purpose of the trailer and thus exempt. Councils will still need to properly consider and put to proof the person responsible for an alleged offence under these new provisions.
In addition to ‘decluttering’ road & road related areas from trailer advertisements the changes further facilitate specific advertising on transport corridor land. Clause 16 facilitates advertising with development consent where advertising is situated on certain major roads or where the development is carried out on or behalf of RailCorp or the RTA on specific lands. This development is permitted despite the fact that other provisions in SEPP 64 and Environmental Planning Instruments restrict it. Notwithstanding the facilitative provision, clause 16(4)(b) operates so that these broader opportunities for signage do not apply where a Local Environmental Plan made after 3 August 2007 prohibits it. To address the inconsistency, clause 16(4) of SEPP 64 will be altered and the anomaly deleted. This deletion will increase opportunities to collect advertising rents from this signage which can be applied for public purposes. Development consent is required for those advertisements and accordingly they will be subject to merit assessment in accordance with SEPP 64 criterion.
The amendment also brings a few welcome house keeping changes to SEPP 64. References to the RTA are now updated to refer to the RMS. The definitions of ‘building identification sign’ and ‘business identification sign’ will be altered to mean the same as those terms under the Standard Instrument. Upon the commencement of the amended SEPP 64, the guidelines referred to throughout the instrument will be the newly amended Transport Corridor Outdoor Advertising and Signage Guidelines referred to above.
The draft changes to SEPP 64 and the accompanying changes to the Environmental Planning and Assessment Regulation 2000 were on public exhibition until 30 June 2017. The draft amendments and an Explanation of Intended Effect can be found on the Department of Planning and Environment’s website.
This article was written by Jane Hewitt, Partner and Lauren Smith, Associate.