Appeal 6007554

The appeal is dismissed.

An application for costs was made by [name] of ESS against Derby City Council. The application is the subject of a separate decision.

In the absence of any formal agreement on the correct postcode for the appeal site I have used the post code from the application form in my banner heading above.

The main issues are the effect of the proposed advertisement display on (i) the amenity of the area (ii) public safety.

The appeal relates to a small toilet block located in a prominent position close to the corner of a signalised junction of four busy roads, including a dual carriageway section of Derby’s ring road. An earlier appeal (Ref: 3310137) against the Council’s decision to refuse two illuminated digital display boards has previously been dismissed in this location.

The site is to the side in the approach along Osmaston Park Road and is seen in conjunction with existing vertical totem signs. From the opposite direction the site sits more centrally within the open space, and sits centrally in the view across the brow of the junction on the approach along [address].

A retaining wall wraps around the rear of the toilet block with a residential street above it and overlooking the site. Otherwise, the character of the area generally comprises a mix of housing and commercial uses, including, amongst other things, a hotel/restaurant, superstores and a petrol station. Signage, including illuminated adverts, contributes to the townscape and is mostly grounded, vertical and modest in scale and assimilates with commercial functions within the street.

The proposed digital advertisements would be elevated above the toilet block and would comprise two back-to-back 48 sheet displays. They would be splayed so as to face along Osmaston Park Road and [address]. The appellant is willing, to accept conditions to comply with [name] (PLG05), limit luminance levels, fix image display to no animation or scrolling, minimise dwelling times, limit flashing or rapid transitions and restrict the operational hours. Notwithstanding this, both displays would be contextually discordant in this location, be significantly distracting by virtue of their brightness, and dominant in their size and form in approaches to the junction. As such, they would impact harmfully on visual amenity.

My attention has been drawn to the appellant’s photographic evidence showing how the proposal would be experienced along the surrounding street scenes. These images demonstrate the visually distracting presence of the displays across the junction and particularly on the approach along Osmaston Park Road where it would appear incongruously against suburban housing.

On my site visit I walked along the approaches to the site and noted the busy traffic along this engineered urban corridor. I was also alert to the presence of highway and roadside infrastructure, including lighting columns, barriers, road markings, traffic signals and existing signage against which the proposal would be read. However, I find the surrounding townscape to comprise highway infrastructure which mostly assimilates with the scale and layout of the road as a main arterial route through otherwise mixed residential and commercial environs.

As with the findings of appeal decision 3310137, when taken as a whole, I find there to be a cumulative impact of the proposal in conjunction with these other existing components within the townscape. They add clutter in this restricted and cramped position in the street scene.

I also note the role of housing in the surrounding area. Whilst there is some separation between much of this housing and the proposal, the housing elevated behind the site is in much closer proximity. As such, the scale and prominent position of the advertisement display facing [address] would introduce unwelcome and unnecessary visual intrusion in the outlook from the houses overlooking the site around the corner of [site address] and [address]

Overall, I conclude that the proposed advertisements would be harmful to amenity. In accordance with the Regulations, I have taken into account the provision of the development plan so far as they are relevant. As such it conflicts with [name] GD5 and E26 of the City of Derby Local Plan Review (2006) (Local Plan) which together seek to ensure, amongst other things, for development not to cause unacceptable harm to the amenity of nearby areas and not to detract from the appearance or character of the street scene.

The appeal site is sat directly adjacent to a busy junction that comprises a dual-carriageway intersected by two roads controlled by traffic lights. Whilst the side roads are limited to 30mph, the dual-carriageway carries traffic approaching the junction at up to 40mph. The carriageway widens to accommodate right and left hand priority turns into [site address] from respective directions, around the corner on which the appeal site is located.

The digital advertisements would be elevated above the junction and would display sequentially static advertisements on a minimum 10 second dwell time. Its illuminated displays would operate throughout the busiest times of the day with regards to traffic flow and would be visible in the approaches along both Osmaston Park Road and [address].

Whilst drivers at the junction are required to focus on lane position, pedestrian crossings and adjacent traffic movement, it is the signals that control this flow and the safety of both pedestrians and persons in vehicles. Based on my observations at my site visit and with the aid of the appellants photographic evidence I was able to see the degree of alignment where the signals and the position of the proposed advertisement display would overlap on the approach along Osmaston Park Road in the left hand priority turn.

The distraction that drivers would incur on this approach would be for a considerable section of the lead up to the junction, including within the priority left turn lane. The photographic evidence does show that the digital display would be a distraction, overlapping and competing with drivers’ primary forward field of view and to a significant level of harm. The traffic lights would merge into the digital picture of the advert and that would make it difficult for drivers to distinguish between the colours of those lights, particularly during low light conditions and for those drivers unfamiliar with the road network, which is a strategic route through the city and a busy junction. The consequences could result in a vehicle running through a red light and colliding with a crossing pedestrian and/or vehicle causing serious injury or worse.

There is nothing in policy requiring collision analysis, accident clustering, visibility modelling, driver behaviour assessment or independent safety evidence to be provided. This data is concerned with past events and would not be expected to take into account the presence of the proposed advert and therefore would not be relevant. I have therefore determined the appeal on the evidence before me, including the Local Highway Authorities advice and my own experience of walking the approach to the junction and driving around the priority left hand turn from Osmaston Park Road into [site address] .

My attention is drawn to a previous appeal (ref: 3310137) in this location. The full details of that proposal are not before me. However, I understand that the Inspector in that case did not find highway safety to be a determinative reason for dismissal. The Council has however clarified within its report that since that proposal was determined a major realignment of the junction has been completed, forming the left-hand priority lane and pedestrian crossing. Therefore, the previous proposal differs significantly on matters of highway safety and is not determinative in this main issue. In that previous Inspector’s conclusion, it was found that highway safety concerns could be addressed through conditions, but that cannot apply in this appeal before me.

Overall, I conclude that the proposed advertisement would be harmful to amenity. In accordance with the Regulations, I have taken into account the provision of the development plan so far as they are relevant. As such it conflicts with Saved Policy E26 of the Local Plan which seeks to ensure, amongst other things, that advertisements do not have an adverse effect on pedestrian and vehicular traffic safety.

The Council’s reason for refusal includes reference to Policy CP23 of the Derby City Local Plan – Part 1 [name] (2017) ([name]). This policy however is concerned with aspects of safety when improving roads rather than development proposals nearby. As such I do not find this policy determinative in my decision.

For the reasons set out above, the proposed advertisement would be harmful to amenity and public safety. Therefore, I conclude the appeal is dismissed.