EPAI - 93 - Local Government. Moreland City Council ... · Moreland City Council advocates a future EPA which is resourced and equipped to face the environmental challenges of Victoria

Introduction

Moreland City Council (Council) welcomes the opportunity to contribute the Ministerial

Advisory Committee for the Inquiry into the Environment Protection Authority (EPA). The

control of pollution and amenity of our environment is one that all in the community value

highly.

This submission contemplates the future of the EPA, being one of a State regulator that sets

standards, provides technical support and plays an important role in enforcement. It is

submitted that to succeed in the future, the current legislative controls and the operational

responses need to be reformed.

The key necessary reforms relate to:

Greater clarity of role and responsibilities between those of the EPA and Councils.

Amended legislative controls that enable the EPA to have greater enforcement

responsibility.

Greater resourcing of compliance activities to meet Victorian community and industry

expectations of the EPA as its environmental regulator.

Renewal of guidelines to meet community expectations

Statewide approach to construction noise guidelines for large scale residential

developments

Greater involvement in the planning process, as a statutory referral authority for

environmental contamination and other matters in planning permit decision making.

Provision of advice on planning scheme amendments to rezone land.

With these necessary reforms in mind the rest of Council’s submission will now outline nine (9) key drivers behind these and specific recommendations that could deliver such reform.

1. Greater clarity of role and accountability of the EPA and Councils

The EPA provides a critical pillar in the Government’s approach to environmental protection,

which is currently hampered by a lack of clarity around the responsibilities of the EPA.

There has also been the absence of a robust enforcement framework in some areas of the

legislation which restricts the EPA’s ability to be an effective regulator.

Moreland City Council advocates a future EPA which is resourced and equipped to face the

environmental challenges of Victoria. The EPA should concentrate on its regulatory duties in

relation to clean air, water and land. To deliver this vision legislative change is needed to

ensure that the EPA is an environmental regulator that has clear and effective enforcement

functions. The EPA as the State environmental regulator has the ability to ensure

environmental enforcement functions are consistent, responsive to risk and not reliant on the

individual funding of each Council. In situations where Council has responsibility for

enforcement, the EPA should be the lead agency in the provision of technical advice as this

expertise does not exist within Local Government.

It is anticipated that community expectations and knowledge will increase with respect to

amenity and environmental concerns. The future EPA needs to be resource and equipped

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Moreland City Council

to respond to community expectations and be capable of delivering effective environmental

protection.

It is submitted that the model adopted by the Victorian Commission for Gambling and Liquor

Regulation (VCGLR), could influence how the future EPA is shaped. The Victorian

Commission for Gambling and Liquor Regulation (VCGLR) is the statutory authority that

regulates Victoria’s gambling and liquor industries. The VCGLR regulates businesses

focusing on the people, premises, products and promotions involved in supplying gambling

and liquor to ensure the integrity of Victoria's gambling and liquor industries and to minimise

harm. The VCGLR works with a diverse number of bodies (including Council) and groups to

achieve positive outcomes for the Victorian community. Importantly VCGLR has the

legislative ability to regulate and enforce gambling and liquor venues and is appropriately

resourced to deliver community expectations.

Recommendations:

1. EPA adopts a legislative and operational model similar to the Victorian Commission

for Gambling and Liquor Regulation (VCGLR). This legislative change will ensure

that the EPA is an environmental regulator that has a clear and effective enforcement

function

2. The EPA would need to be resourced and capable of delivering an appropriate level

of service.

2. Potentially contaminated land

The State Environment Protection Policy (Prevention and Management of the Contamination

of Land) provides the legislative basis for the involvement of Councils in potentially

contaminated land.

Council considers potentially contaminated land, as a:

Planning Authority when considering an amendment to its planning scheme and must

be satisfied that the environmental conditions of the land are or will be suitable for the

use.

Responsible Authority when making a decision on a planning permit application and

when enforcing its planning scheme and any planning permits issued under it.

Land and facility owner or manager

Like many inner city councils Moreland has a legacy of potentially contaminated industrial

sites that are transitioning to sensitive uses. This potentially contaminated land adds to the

complexity of rezoning applications, planning decisions, enforcement of conditions and even

how to manage risk on land that Council has purchased for the community’s benefit. Council

lacks the technical expertise to identify land as potentially contaminated and to be able to

assess technical documents.

Planning Amendments:

When land is rezoned from an Industrial Zone to a Zone that could have a potentially

sensitive use, an Environmental Audit Overlay is applied to the land. This decision can be

made without understanding whether the land can be remediated to allow a sensitive use,

which leads to uncertainty post rezoning. Council would be assisted by the EPA’s technical

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expertise to understand whether the amount of contamination is a reason to prevent

rezoning.

The responsibility to analyse and confirm the level of contamination of private land should sit

with the land owner and preferably, in fairness, the original polluter of the land. Ideally, the

cost of remediation of the land should also lie with the original polluter and be addressed

prior to the sale of the land. Of note is the former Kodak site (now known as Coburg Hill),

where voluntarily Kodak Australia retained responsible for site remediation via a Section 173

Agreement pursuant to the Planning and Environment Act 1987.

The EPA’s leadership on a systematic application of the Environmental Audit Overlay would

be of assistance. Council has known locations where land is currently contaminated but not

contained within an Environmental Audit Overlay. It is understood that the EPA has access

to significant records and expertise that could be utilised to identify and map the

Environmental Audit Overlay. For a systematic application of the Environmental Audit

Overlay to succeed the EPA must be responsible for interpreting technical information in

determining where to apply the overlay. It is submitted that a systematic application of the

Environmental Audit Overlay would better manage risk and provide greater transparency for

land owners or developers.

Recommendations:

1. EPA should be a referral agency in determining whether the land should be rezoned.

2. EPA to lead and Council support a review of the application of the Environmental

Audit Overlay in the Municipality.

Planning Permits

The Potentially Contaminated Land General Practice Note (June 2005), guides Council

acting as the Responsible Authority on when to impose planning permit conditions that

require either a Certificate or Statement of Environmental Audit where there is no overlay.

This is a decision that can impose significant cost onto a development which is then being

reflected in higher housing prices. While this practice is followed councils lack the expertise

to then assess the resulting reports. The EPAs technical expertise could assist in reviewing

applicant’s Environmental Site Assessment reports. Equally the EPA expertise could

resolve disputes between Council and applicants when a conclusion of Environmental

Experts is not clear or when the level of investigation is considered to be inadequate.

When an Environmental Audit Overlay is applied to land, Council’s planning decision is

straight forward in that planning permit conditions are imposed requiring either a Certificate

or Statement of Environmental Audit. The Environmental Audit Overlay should be amended

to incorporate planning permit triggers and a mandatory referral to the EPA.

It is appropriate for the EPA to be a Referral Authority where there is an Environmental Audit

Overlay or on land confirmed as potentially contaminated by an environmental assessor.

The EPA as a referral authority would provide critical technical input which would greatly aid

the planning system which is not equipped to analyse critical issues of potential harm to the

environment and human health. Unlike other parts of the planning system the risks of error

is elevated far beyond those of visual impact, overlooking and overshadowing.

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Recommendations:

1. Environmental Audit Overlay amended to include a planning permit trigger.

2. EPA to be a Referral Authority where there is an Environmental Audit Overlay or on

land confirmed as potentially contaminated by an environmental assessor.

Enforcement

The current legislative controls place Council in a vulnerable position when applicants do not

complete Environmental Audits before construction. Council has been accused in the past

of not progressing or escalating its enforcement action quickly enough, when an apartment

building was substantially constructed without completing an Environmental Audit. To better

protect against potential litigation and importantly protect the community against

contamination Council now proactively enforces planning permits which include conditions

that require either a Certificate or Statement of Environmental Audit. Recently Council

identified a five storey apartment building commencing development without a Certificate or

Statement of Environmental Audit. The developer and builder ignored requests by Council

to cease work and provide an Environmental Audit which resulted in Council lodging

proceeding in the Magistrates' Court. Fortunately Council secured a guilty plea and had full

recovery of legal fees. Due to current legislative restrictions the EPAs role in this matter was

limited to confirming the appointment of the Environmental Auditor. Notably the building was

substantially complete before the Statement of Environmental Audit was preceded and the

matter proceeded to court.

The Planning and Environment Act 1987 does not equip Council with the necessary

enforcement ability to direct that development ceases in situations where development has

commenced without an Environmental Audit. The Victorian Civil and Administrative Tribunal

does have the ability to impose stop work order, however if Council is not successful the

accused has grounds for Council to pay costs which limits Council enforcement ability.

There is an opportunity for legislative change, which enables the EPA to have greater

involvement in enforcement, including the ability to direct development cease as well as

undertaking its own legal action.

The soil stockpiling and disposal of contaminated soil, is emerging as a significant issue. It

has been observed that on large redevelopment site, there have been significant stockpiles

of potentially contaminated soil of concern to the surrounding residential community. When

Council has enquired the EPA was not able to provide any information on the level of

contamination and the Environmental Auditor refused to release information to assist

Council’s investigation. Council is not able to provide clear direction or an adequate

response to the community, as it is unknown whether the removal of the soil would have

potential to cause harm to the wider community. Council would be assisted by the EPAs

technical ability regarding the type of contamination and the appropriate method of removal.

In another recent example, Council understands that post the issue of a Statement of

Environmental Audit and upon the advice of an environmental assessor contaminated soil on

a redevelopment site is being mixed with imported clean soil to reduce the level of

contamination which in turn reduces the cost of disposal. This practice lead to the adjoining

building collapsing as a large amount of soil was stockpiled on the boundary wall. The EPA

should have the legislative ability to intervene in such situations, to ensure contaminated soil

is being correctly managed. It would seem that the landfill levy costs may be resulting in

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adverse contamination and environmental outcomes with the advice of environmental

assessor going unregulated.

Recommendations:

1. Legislative reform and appropriate resourcing allowing the EPA to direct stopping of

works and prosecute for not completing Environmental Audits.

2. The EPA to provide technical advice on whether soil stockpiles are contaminated.

3. Legislative reform to allow EPA (or an independent statutory body as was created

under the Building Act 1993 in the form of the Building Practitioners Board) to

regulate environmental assessors and poor on site remediation practices.

Council owned land

Council has a number land parcels that are potentially contaminated, which pose difficulties

with managing risk and protecting the community. Council would be assisted by the EPA

technical advice on how Council should mitigate risk and potentially remediate land.

Recommendations:

1. EPA to provide technical advice on Council owned land.

Advisory Committee submission on potentially contamination land

The Minister for Planning appointed an Advisory Committee under Part 7, Section 151 of the

Planning and Environment Act 1987 to report on planning controls for potentially

contaminated land in 2011. To assist with reform relating potentially contamination land

attached is the Moreland City Council submission to the Potentially Contaminated Land

Advisory Committee Issues and Options Paper

3. Land use planning

It understood that the vision set for Melbourne is of continued population growth which will

result in the shift in how and where people live. In the City of Moreland there is an evident

shift of long standing industry being replaced with mid-rise apartment buildings. The result

of this shift can result in conflict being created between incompatible land uses or conflicts

associated with greater residential density.

The City of Moreland is activity seeking to retain employment; however there is a risk of

employment generating uses being ‘pushed out’ due to requirements of meeting stringent

noise requirements. At the Planning Scheme Amendment stage, Council is required to

consider whether it is appropriate to rezone land to create the capacity for high density

housing. The advice and expertise of the EPA would assist the amendment process and

facilitate a more proactive approach to manage conflict that is likely to arise when

incompatible land uses are proximate. Knowing potential conflicts at the amendment stage,

will facilitate understanding whether an amendment should proceed.

The current operation of Clause 52.10 of the Planning Scheme sets the framework for

industrial planning permit applications to be referred to the EPA as a referral authority.

There is currently no mechanism to consider the impact high density residential development

may have on existing industrial uses and yet this is equally relevant. Again there is a role for

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the EPA as a Referral Authority. In this circumstance this would be for large residential infill

development and provide valuable input on how potential conflict can be avoided.

Recommendations:

1. EPA to provide technical advice on rezoning.

2. EPA a Section 55 Referral Authority when large residential infill is proposed

proximate to existing industry.

4. Noise from Commercial and Industrial properties

The EPA was initially established as the sole regulator of noise from commercial and

industrial premises. The legislation by which the EPA was established clearly made the

Authority the sole enforcement authority for the control of plant and equipment noise from

commercial and industrial premises. Its powers under the legislation are (appropriately) not

transferrable to Local Government and not able to be directly enforced by Local

Government. One of the initial aims of establishing the EPA then was to deliver consistency,

across all of metropolitan Melbourne. The inconsistency of a Council by Council approach

was acknowledged in the Act by the creation of the Authority.

However, the EPA recently introduced and implemented strategies to reduce its noise

related workload. This included directing smaller industrial/commercial noise complaints to

Councils under the EPA’s risk matrix. The risk matrix was developed without consultation

with Councils and has shifted the burden of these complaints without considering the

implications on Councils’ resources. Council is not supportive of this change and is

concerned that the recently commenced review of the State Environment Protection Policy

(Control of Noise from Industry, Commerce and Trade) N1 (SEPP N-1) will provide a vehicle

to formalise the transfer of responsibility without considering the financial impact on Local

Government. The legislation and standards do not differentiate based on the size of the

premises. It is particularly concerning that the discussion paper suggests that councils are

responsible for the investigation and enforcement of noise complaints from shops and other

small commercial properties.

It is suggested that the Public Health and Wellbeing Act (PH&WB Act) enables the

enforcement of SEPP noise. Due to the structure of the PH&WB Act this is significantly

more arduous than enforcing the exceeding of a noise limit. The noise would need to be

dangerous or offensive to health not just annoying, in order for the PH&WB Act to be used. It

would also need to be shown that the noise exceeds SEPP N-1. This requires an expert

technical assessment. The EPA has continued to refer complaints to Councils even after the

PH&WB Act was altered to exclude annoying.

Similarly the planning system does not provide a straight forward mechanism for

enforcement of SEPPs. It is noted that not every noise generating use benefits from a

planning permit condition and even when a planning permit is required, sometimes it is not

apparent at planning permit approval stage that a noise will be generated to a point of

causing a problem. Council cannot revisit its planning permits. At this point Council cannot

directly enforce SEPP N-1.

In situations where Council is responding to noise complaints, the cost of proving a breach of

SEPP is inappropriately passed onto Council. This cost includes officer time and as Council

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often lacks the necessary expertise to determine whether complex SEPPs are being

breached, often results in the need to engage an acoustic consultant to provide a report.

These reports typically cost in the vicinity of $1500-$2500 on each occasion, making

enforcement an expensive exercise. This is coupled with the fact that not every use requires

a planning permit or often planning permits do not contain SEPP conditions resulting in

Council not having legal powers to directly enforce the provisions of SEPP N-1.

Local Government is not equipped to act as the noise enforcement agency as it is not

empowered by the current legislation and has limited expertise and resources to respond

appropriately with customers frustrations arising from differing advice on responsibility for

enforcement.

Further, in our experience, the view that Council and the EPA are interchangeable as

enforcement agencies does not provide for good customer service with the customer

frustration arising from differing advice on responsibility for enforcement.

All premises under the current legislation are obliged to comply with SEPP N-1. The EPA is

the only agency that can directly enforce this standard. Given that all premises regardless of

size are required to comply with SEPP N-1. Complainants expect their complaint will be

assessed as per SEPP N-1 requirements. Increasingly, many complainants request proof

that the premise is compliant with this standard. Similarly businesses accused of excessive

emissions also want proof that they are in breach.

If breaches of SEPP N-1 are found then it can be expensive for a business to implement

acoustic attenuation measures to achieve the required noise levels. In some cases it can

require relocation or closure of the business. Given the seriousness of the consequence and

a structured enforcement regime is required, that is clear to all involved.

The criteria adopted by the EPA to determine which complaints they will action, in reality,

mean that almost all noise complaints of a commercial or industrial nature are referred to

Council, including hospitals, foundries, recycling plants and bakeries. Even when it does

involve larger premises, the EPA has consistently stated that they need at least three

complainants before they will become involved. Or they advise that due to workload and risk

of the issue, it will be many months before it is considered. There has been no willingness by

EPA staff to discuss collaborative approaches with Council officers to resolve complaints.

This does not meet community requirements, resulting in increased work for Local

Government in responding to complaints that Council’s do not have the powers or

responsibility to enforce. All of these EPA practices are unacceptable.

This poor practice (shifting) now means that the very thing the EPA was established for (i.e.

a consistent approach) has now resulted in each municipality handling complaints differently.

It also leads to complaints being investigated without the consistency in expertise,

knowledge and approach that can be delivered through a state-wide agency. Returning

these tasks to a state-wide agency would assist in the management of such complaints with

a greater level of expertise and prevent variable responses between different municipalities.

The EPA needs to be adequately resourced. It cannot be expected that Council will fill any

voids created should the EPA be left under resourced. A clear decision needs to be made

as to which tier of government is to be responsible for noise control enforcement.

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In a rate capped environment Council does not have the resources to undertake additional

compliance responsibility.

The EPA cannot continue to ignore its enforcement obligations.

Recommendations:

1. EPA to be responsible for monitoring and enforcement of noise from commercial and

industrial premises.

2. SEPP N-1 to remain an objective measure of noise permitted to be emitted. (Refer

to Moreland Council’s submission in the review of SEPPS)

3. The roles and responsibilities between Council and the EPA need to be clearly

defined and agreed by all stakeholders.

5. Noise from residential properties

The current guidelines Publication 1254 are out dated and do not reflect the increasing

density of urban areas with higher usage of central heating, air conditioners, ducted

vacuums and spa motors. The current expectation is that inaudibility during prohibited times

is required. This is being taken to the extreme by some complainants. Further the

expectation that the noise levels are to be taken on the property boundary does not reflect

the norm when considering the typical dwelling layout, particularly in low rise developments.

There is a need to refresh these guidelines to align with increasing community expectations

of amenity issues and acknowledge the increase in use of plant equipment such as central

heaters, air conditioning, water pumps etc. This review should explore setting clearer

expectations for acceptable noise emissions in a residential environment.

Recommendations:

1. Council retains responsibility for monitoring and enforcement of residential noise.

2. A consultative review of the legislations and guidelines relating to residential noise,

including all construction noise be undertaken. The review must include

consideration of increase amenity expectation and higher density housing.

3. Consultative review of all legislation relating to residential noise and associated

guidelines

Construction noise

Like many inner city councils Moreland is experiencing the construction of an unprecedented

number of buildings covered by the Guidelines for larger scale residential developments (As

defined in the Residential Noise regulations). Council is finding that the flexibility created by

the guidelines is being, at times, abused. The construction of such buildings has required

extensive rock breaking which has taken months of work. Issues of noise and dust from

other activities have included, sifting of rock and soils, late night deliveries of large

machinery and large concrete pours in the early morning have impacted on amenity of these

densely populated areas.

Ideally there would be a system which acknowledges that some flexibility is required for such

projects, but creates boundaries so that Industry does expect controls and enforcement.

The creation of template construction management plans (CMP) by the EPA would allow for

flexibility but also agreed time and noise controls. These could be required to be submitted

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to Council for approval and enforcement. This would also create an industry norm of what is

acceptable. These construction management plans would also address the issue of dust

control on such sites. Such a system would be easier to implement and enforce than the

current ambiguous guidelines.

The schedule contained in the regulation 6 is being ignored. Many complaints are being

received about works commencing before scheduled times. It would be beneficial that there

be on the spot fines that could be issued to the owner, builder or worker so that this

requirement is met. This would allow for enforcement powers that Councils now need to

incorporate in Local laws to be able to enforce.

Recommendations

1. Construction management plan templates be created within provisions of the EP Act

which are approved and enforced by local government

2. The Prescribed items Schedule be reviewed and provisions made to allow for on the

spot fines to be issued by Local Government

6. Other noise impacts

There are currently gaps where no regulations currently exist to provide noise limits on the following matters that have the potential to have an impact on the community. The EPA as the State regulator should establish noise guidelines for:

Noise from Car parks

Currently there are no controls or requirements regarding the noise emissions from large car

parks abutting residential areas. This should also identify the potential for sleep awakening

events. It would provide a clear understanding of the noise expected and hopefully some

design solutions implemented in the planning stage. It is Council’s understanding that this is

the case in NSW.

Noise from Patrons

There is a need to have a standard to protect residents amenity from patron noise. There

are a significant number of premises that now have outdoor dining areas as well as larger

licensed premises that have large outdoor entertainment spaces accommodating hundreds

of patrons. This is driven by smoking regulations and the popularity of outdoor dining. The

premises should be responsible for constructing the area so that the noise generated by

patrons is not adversely affecting the residential enjoyment. A noise standard is therefore

required to guide reasonable amenity expectations.

Noise from Dog Kennels/Animal boarding

Premises which house animals are being established in the inner city such as dog crèches.

These premises can be in formerly industrial premises in close proximity to residences. The

practice can give rise to animals being housed that are problem barkers. A method of

capturing the level of annoyance without averaging is required.

Religious services music

There should be some controls regarding music noise associated with religious services in

the SEPP, particularly given that religious services often occur in residential areas. There

D15/319682

has also been a growth in the number of religions that heavily utilise music in their worship,

such worship including practices exceeding 8 hours on a Sunday.

Trains and trams

Clear levels of acoustic treatment for sensitive uses near trains and trams would enhance

built form outcomes especially as Melbourne suburbs intensify along tram and rail corridors

under Plan Melbourne. This could be implemented by setting a standard and imposing

compliance on the agent of change

Recommendations:

1. EPA to establish additional noise standard for matters that have the potential to have

an impact on the community.

7. EPA and climate change

Council considers climate change to be a key challenge for the future of Victoria and is both

an active advocate and player for delivering sustainable outcomes. The EPAs expansion

desires in respect to climate change are supported but should not detract from the

requirement to concentrate on its regulatory duties in relation to clean air, water and land,

rather than driving initiatives to address climate change.

Recommendations:

1. EPAs role should be limited to being the environmental agency with Sustainability

Victoria the lead State agency on climate change.

8. Provision of advice and expertise

There has been a gradual but observable attrition of subject matter experts in the EPA. Be it

noise, contaminated land and septic tanks.

Council’s, due to the range of activities it deals with, will sometimes be in a position where

they require advice on an issue. This loss of expertise is compounded by the lack of ability to

access such staff and there risk aversion culture. Staff are also not prepared to provide any

advice that is site specific.

The culture of the organisation has evolved to a point to which personnel no longer provide,

as a matter of course their telephone numbers. They can therefore only be accessed via

email or the main number. This obviously hampers communication which impedes achieving

optimal outcomes for the community.

There is also limited opportunity for EPA officers to meet with council officers to encourage

the development of collaboration and rapport.

Recommendations:

1. EPA to provide technical advice to stakeholder as a subject matter expert.

2. Improved communication channels and access by expert officers and

encouragement of dialogue with Council officers to understand concerns and

emerging issues

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9. Landfill management

The State has not used landfill levy revenue to better support Councils to achieve positive

environmental outcomes in relation to management and rehabilitation of landfills. According

to a recent media report, there was more than $311 million of landfill levy accrued in the

Sustainability Fund at the end of 2014.

A major issue has arisen wherein the cost to remove contaminated soil is seeing clean fill

being mixed on contaminated sites to reduce the level of contamination and subsequent

removal cost. This practice can be dangerous (as outlined earlier) and results in twice the

heavy vehicle movements to a site (one with the clean fill and then another to finally remove

the soil), often in increasingly dense urban environments and adding to the extent of

disruption, noise and dust occurring with development. The use of clean fill in this way

increases the volume of contaminated soil, albeit at a lower contamination level. That

practice does not appear to be monitored in any way and, as land fill, should be serviced

through the landfill levy revenue.

In addition a clear and transparent program of directing landfill levy funds to investigation

and rehabilitation of former landfill sites should be established.

Consideration of any increase in the landfill levy should also factor that Local Government is

soon to be operating in a rate capped environment, with a cap of fee increases for Local

Government mirroring the rate cap amount.

Recommendations:

1. The EPA review how soil contamination removal practices are being managed.

2. Greater transparency and consultation with Council in respect to the direction of

funds received from the landfill levy.

Attachments:

Attachment 1 - Advisory Committee submission on potentially contaminated land

Attachment 2 - Moreland Council’s submission in the review of SEPPS

D15/319682

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SEPPs review discussion papersubmission template

Submitter details

For organisations and businesses with an interest in noise

Organisation Moreland City Council

Industry sector Local government

Corporate No. D14/310410

Contact person name

and position

description

, Planning Coordinator

, Unit Manager Environmental Health

For individuals affected by noise

Name

Contact details

Email

Phone

Address 90 Bell Street

COBURG VIC 3058

Would you like your

submission to remain

anonymous?1

No

Would you like to be

kept updated about

the noise SEPPs

review?

Yes

Question template notes

The heading structure and numbering in this template is the same as in the discussion paper,

available at: epa.vic.gov.au/our-work/setting-standards/environmental-standards-

reform/noise.

1 We still require your name and email address, however we will not publish any of your details, or provide

those details to anyone else.

Please feel free to make comments on any or all sections of the discussion paper.

To assist us to consider your comments, we would appreciate if you kept the heading

structure and numbering as per the discussion paper.

General comments section

Council welcomes the review of the SEPPs and agrees they play an important role in providing

certainty for residents and business. The enforcement of SEPPs places significant costs onto Council,

who are often unable to legitimately enforce due to limitations in the Planning Scheme or the Public

Health and Wellbeing Act. The EPA should therefore play a greater role in the enforcement of SEPPs

given they have the necessary expertise, but limited resources to do so.

Council believes a partnership arrangement with the EPA, could greatly enhance the enforcement of

SEPPs. This partnership would need to have very clear expectations of each organisations role in

complaint resolution, so that the current unsatisfactory dilemma does not reappear.

The EPA would need to be resourced and capable of delivering an appropriate level of service as

agreed.

Council does not have the necessary expertise to respond to Part 2 and notes consultation includes

acoustic consultants who are an important stakeholder in SEPPs and are likely to provide input.

…

1 Introduction

1.1 Reviewing the noise SEPPs

1.2 What are SEPPs?

1.3 What are the noise SEPPs?

SEPP N-1 – commercial and industrial noise

Noise from Industry in Regional Victoria (NIRV) – commercial and industrial noise

SEPP N-2 – music noise from public premises

Noise that isn’t covered by a SEPP

1.4 Objectives of the noise SEPPs review

Protecting people from unreasonable noise

Getting the balance right for businesses and the community

Appropriate, effective and accessible regulation

1.5 Stages of the review

1.6 Purpose of this discussion paper

1.7 Structure of the paper

1.8 Call for submissions

PART ONE

Part One of the discussion paper is a general discussion about the purpose and operation of the

noise SEPPs – what they set out to protect and where and how they apply. It also considers some

important issues like encroachment, and how the noise SEPPs are enforced.

2 Regulating noise

2.1 Why is noise a problem?

If you have been disturbed, bothered or annoyed by noise (particularly commercial, industrial or

music noise) we want to know about your experience of this. For example:

What type of noise impacted you?

o What was the source of the noise? – e.g. noise from an entertainment venue,

factory, business, shop, farm, mine, quarry etc.

o What was it about the noise that disturbed you? – e.g. was it too loud or occurring

too often? Or did the noise have particularly annoying characteristics such as

banging, intermittent crashes, humming, scraping, bass, ‘doof-doof’, rumble etc?

How serious was the noise problem for you?

What times of the day does noise generally disturb, bother or annoy you?

How has noise impacted you in your day-to-day activities?

Have you made a complaint about noise? If so, who to? If not, why not?

If you have made a noise complaint, what were the outcomes of this? Was the matter

resolved? If not, what were the reasons given?

2.2 What we are trying to protect – ‘beneficial uses

The broadening of the definition of ‘beneficial uses’ could have some benefits and is worthy of

further investigation. It is noted that the DSE potentially contaminated land practice note, lists child

care centres, primary schools and dwellings as sensitive uses, perhaps a similar principle could be

followed.

The expansion of beneficial uses to leisure and work activities needs further investigation and

justification. It may be unreasonable to protect sports grounds from noise impacts particularly given

these activities can be the source of significant noise.

2.2.1 SEPP N-1 (commercial and industrial noise)

2.2.2 SEPP N-2 (music noise)

2.3 How do noise SEPPs protect beneficial uses?

What activities (or ‘beneficial uses’) should be protected from noise?

Should the level of protection from noise vary based on location – for example, in inner-city

Melbourne compared with residential suburbs or regional areas?

The SEPPs provide protection particularly for sleep periods and establish level of expected amenity

for daytime activities

Ideally the amenity expectations should vary depending on the beneficial uses location. In activity

centre locations, there needs to be some tolerance to noise impacts which add to the vibrancy of the

centre. It has been accepted by VCAT that residential properties within commercial zones should

not have the same amenity expectations as properties in residential zones

The SEPPs, particularly SEPP N-1, are very useful tools in that they serve in the main to provide a

consistent benchmark that all of commerce and industry need to meet. It also serves to establish the

nature and character of an area which is an intrinsic part of establishing the level of amenity that is

reasonably able to be expected by residents. This objective tool is the only way to characterise an

area, particularly if it has numerous diverse uses or planning zones.

2.4 Advantages and disadvantages of using a SEPP to control noise

Balancing certainty and flexibility

Overall, SEPPs can be useful, but due to lack of in-house expertise can be a difficult tool for Council’s

to use to resolve noise complaints. It is also significant there are currently limitations in the

legislations available to Council to properly enforce SEPP, which can lead to frustrated residents.

Objective noise standards make it easier to give clarity to complainants that this is all they are

entitled to expect, particularly when they are in mixed use zones. There needs to be some caution

with objective noise requirements, as whilst they can provide certainty, Council has a lack of

resourcing and expertise to perform assessments. Council often needs to carry the burden of proof

to demonstrate compliance / non-compliance, which results in the use of external experts to assist.

The EPA could act as the enforcement regulator, if resourced appropriately. Council believes that

greater engagement by EPA could greatly enhance the enforcement of SEPPs. Alternatively

providing greater support through by using the EPAs expertise would greatly assist Council using

objective measures.

If a subjective outcome was allowed by the SEPPs then matters would remain unresolved as

potentially all parties could be dissatisfied. This approach would be problematic as there is no easy

way to achieve a conclusion.

Who has control over the noise?

There appears to be an issue controlling noise that cannot be easily mitigated through acoustic

attenuation such as patron noise. The SEPP should explore practical solutions, as Council’s

experience is such noise is a reason for much compliant. It is noted that venues that have good

management, can assist, but not every venue is well managed. Perhaps objective measures such as

hour limitation on outdoor dining/entertainment could be explored.

3 Costs and benefits of regulating noise

If you are directly or indirectly affected by noise SEPPs, we want to know:

who you represent - e.g. yourself, a business (and if so, what type), a state government

agency, a council, a planning, environmental or design company, etc.

what costs and/or benefits you experience because of the current noise SEPPs?

how could we increase the benefits or reduce the costs of noise regulation for you?

Who you represent Examples of costs and benefits we want to know about

Businesses that the SEPPs

apply to

Direct costs and benefits

Economic value of your business activity

Costs of installing noise controls at your business (including

engaging acoustic consultants)

Lost earnings from restrictions on business activities to

comply with noise obligations

State government agency,

council, planning,

environmental, design or

other professionals who deal

with noise in their work

Indirect costs and benefits

Value of time (e.g. staff labor costs) applying noise SEPPs –

this could be a cost due to time required to perform or

consider a noise assessment prepared according to a noise

SEPP, or a benefit when the noise SEPPs save you time by

providing certainty about noise obligations and assessment

methods

Cost of engaging consultants to perform noise assessments

and provide expert advice (again this could be a cost when

it is a complicated or time-consuming process or a benefit

when the system operates efficiently)

Individuals affected by noise Direct costs and benefits

Costs you incurred to reduce noise, e.g. by installing double

glazing etc.

Benefits of a noise environment where you are protected

from unreasonable commercial, industrial or music noise

From a Council perspective costs can be minimised when the ‘potential’ noise impacts are addressed

prior to the use commencing. This proactive approach would have a direct cost on new businesses;

however this can be offset by costs associated with retrofitting acoustic attenuation and

enforcement action. The ability to regulate this approach is hampered, by the Planning Scheme

which seeks to favour new business by not requiring use planning permit triggers for many noise

generating uses in Commercial and Industrial zones. This makes SEPP conditions invalid and not able

to be included on any planning permit that may issue.

An alternative and preferable approach to using the Planning Scheme, is to use other regulatory

functions, such as building or liquor licence approvals. For example the building approvals process

could include a step that requires the submission of a certificate of acoustic adequacy which is

similar to providing the building surveyor electrical or plumbing certificates. The level of acoustic

attenuation could depend upon threshold distances to sensitive uses with the applicant being

burdened with demonstrating compliance as part of the building approvals process.

In situations where Council is reacting to noise complaints, the cost of proving a breach of SEPP is

inappropriately passed onto Council. This cost includes officer time, who lack the necessary

expertise to determine whether complex SEPPs are being breached. Due to this complexity there is

often a need to engage an acoustic consultant to provide a report, as Council does not have this

level of expertise in house. These reports typically cost in the vicinity of $1500-$2500 on each

occasion, making enforcement an expensive exercise. This is coupled with the fact that not every use

requires a planning permit or often planning permits do not contain SEPP conditions resulting in

Council not having legal powers to directly enforce the provisions of SEPP anyway.

4 The types of noise covered by the noise SEPPs

4.1 Types of premises

4.1.1 SEPP N-1 and NIRV (commercial and industrial noise)

Premises not covered by SEPP N-1 and NIRV

Residential noise: The regulations in this sector could benefit by some review – clearer expectations

of accepted noise emissions in a residential environment would be really useful. The current

guidelines 1254 are out dated and do not reflect the increased density of housing with higher usage

of central heating, air conditioners, ducted vacuums and spa motors. The current expectation is that

inaudibility during prohibited times is required. This is being taken to the extreme by some

complainants. Further the expectation that the noise levels are to be taken on the property

boundary does not reflect the norm when considering the typical dwelling layout.

Noise from roads: This has been an issue as it has been left to VicRoads to set various limits for new

and old segments of roadway, this appears to have been driven by cost rather than scientific

evaluation on the impacts on people.

Trains and trams: Clear levels of acoustic treatment for sensitive uses near trains and trams would

enhance built form outcomes especially as Melbourne suburbs intensify along tram and rail corridors

under Plan Melbourne.

Noise from Luna Park

N/A


Are the types of premises currently covered by SEPP N-1 and SEPP N-2 appropriate?

Noise from Carparks

Currently there are no controls or requirements regarding the noise emissions from large car parks

abutting residential areas. This should also identify the potential for sleep awakening events. It

would provide a clear understanding of the noise expected and hopefully some design solutions

implemented in the planning stage. It is Council’s understanding that this is the case in NSW

Noise from Patrons

This is an issue that should be addressed. There are a significant number of premises that now have

outdoor dining areas as well as larger licensed premises that have large outdoor entertainment

spaces accommodating hundreds of patrons. This is driven by the popularity of smoking patrons and

the popularity of outdoor dining. The reality is that the presence of patrons in itself generates noise.

The premises should be responsible for constructing the area so that the noise generated is not

adversely affecting the residential enjoyment.

Noise from Dog Kennels/Animal boarding

Premises which house animals are being established in the inner city as dog crèches. These premises

can be in formerly industrial premises in close proximity to residences. The practice can give rise to

animals being housed that are problem barkers. A method of capturing the level of annoyance

without averaging would be of assistance.

4.2 Where in Victoria do the noise SEPPs apply?


Figure 1 SEPP N-1 area of application (inside red line)2

Should a SEPP for commercial and industrial noise cover the whole state – even if this would need to

include different methods for setting noise limits in different areas of the State? Or is the flexibility

provided by only having a guideline for noise in regional Victoria (like NIRV) more appropriate for

rural and regional areas?

Is the current boundary for SEPP N-1 appropriate?

A consistent approach would provide uniform outcome and certainty for commerce and industry

throughout Victoria.


4.3 What types of noise are covered?


Exclusion Other guideline or legislation that applies ‘Other document’ status

Music SEPP N-2 Subordinate legislation

Voices None N/A

Noise from crowds None N/A

Noise from

firearms

Noise from Outdoor Shooting Ranges

(EPA pub. no. 1508, October 2012)3

EPA guideline

Noise from lawn

mowing

Noise Control Guidelines

(EPA pub. no. 1254, October 2008)4

EPA guideline

Noise from

construction or

demolition

activities on

building sites

Noise Control Guidelines

Environmental Guidelines for Major Construction

Sites (EPA pub. no. 480, February 1996)5

EPA guideline

Noise from

sporting events

Public address systems used at sporting events

are covered by the Noise Control Guidelines;

other aspects of noise from sporting events are

not covered

EPA guideline

2 See detailed maps showing where in Victoria SEPP N-1 applies at: http://www.epa.vic.gov.au/business-and-

industry/guidelines/noise-guidance/noise-from-commercial-and-industrial-sites.

3 http://www.epa.vic.gov.au/our-work/publications/publication/2012/october/1508.

4 http://www.epa.vic.gov.au/our-work/publications/publication/2008/october/1254.

5 http://www.epa.vic.gov.au/our-work/publications/publication/1996/february/480.

Exclusion Other guideline or legislation that applies ‘Other document’ status

Noise from audible

intruder,

emergency or

safety alarms

None N/A

Noise from aircraft

except for ground

maintenance

activities

Clause 45.02 (Airport Environs Overlay) and

clause 45.08 (Melbourne Airport Environs

Overlay) of planning schemes. These provisions

apply the Australian Noise Exposure Forecast

(ANEF) system.6

The Air Navigation (Aircraft Noise) Regulations

1984 (Cth) provides for the issuing of noise

certificates for aircraft.

Section 71(2)(d) of the Airports Act 1996 (Cth)

requires airports to publish ANEF contours.

Subordinate legislation

(Victorian Planning

Provisions),

Commonwealth legislation

Noise from mobile

farm machinery

None N/A

Noise from scare

guns and anti-hail

guns

Noise Control Guidelines EPA guideline

Noise from

livestock on a farm

or in a saleyard

None N/A

Noise from a fire

pump used in an

emergency

None N/A

Noise from non-

commercial

vehicles except for

maintenance

activities

Section 48B Environment Protection Act 1970;

Environment Protection (Vehicle Emissions)

Regulations 2013

Victorian legislation

Vibration

Wind turbine noise

6 The ANEF system applies Australian Standard AS 2021–2000, Acoustics – Aircraft Noise Intrusion – Building Siting and Construction. For

general information about aircraft noise see: http://aircraftnoise.com.au/.

Vibration skills cost and expertise


Recognising that music can have special social significance, should a SEPP for music noise operate

differently from other noise laws? If so, do you have any suggestions as to how?

Yes, a balance needs to be able to be enforced to protect residents, particularly as venues seek to be

open for longer periods. It is noted there have been recent changes to the particular provisions of

the Planning Scheme via the introduction of Clause 52.43 (Live Music and Entertainment Noise),

which seeks to introduce the agent of change principle. This review should take the opportunity to

further review this clause, as the current drafting appears to be a disincentive to establish a new live

music venue. Further the guidance surrounding residential infill is limited to 50 metres, which does

not sufficiently protect existing live music venues.

4.3.3 Noise not covered by SEPP N-2

Patron noise

As previously discussed under Clause 4.2.2 there needs to be objective measures to control the

impact of patron noise.

Religious services music

Should a noise SEPP apply to patron noise or any other types of noise associated with public

premises? If so, in what circumstances should it apply (e.g. only for premises that serve alcohol)?

Is the exemption for religious services music in SEPP N-2 appropriate?

Should there be any other exemptions from public premises required to comply with SEPP N-2?

There should be some controls regarding music noise associated with religious services in the SEPP,

particularly given that religious services often occur in residential areas. There has also been a

growth in the number of religions that heavily utilise music in their worship, such worship including

practices exceeding 8 hours on a Sunday.

5 Compliance and enforcement

5.1 Who enforces the noise SEPPs?

Is the current compliance and enforcement framework for commercial, industrial and music noise

effective? How could it be improved?

What experiences have you had responding to noise complaints (for businesses) or making a noise

complaint (for individuals)? Was the compliance and enforcement process handled effectively? If

not, do you have any ideas about how the process could have been handled better?

Are the current types of noise that are excluded from SEPP N-1 appropriate?

Should the noise SEPPs or some other instrument apply to other sources of noise? If so, what

methods and/or controls could be used for these sources? For an overview of the types of controls

available to control noise, please see section 7 of this discussion paper.

It is relevant to note that over time it has been observed that the EPA has repositioned itself to be a

policy body rather than an enforcement agency. To fill this void, Local Government has started to

act as the enforcement agency. However Local Government is not equipped to act as the

enforcement agency as it lacks capacity within the current legislation and has limited resources or

expertise to respond appropriately. Councils receive a large number of complaints, many of which

have taken extensive amounts of officer time as well as the expenditure of resources to respond to.

As the level of government most accessible to residents, the fall back for these types of

complainants has now become Local Government rather than the EPA and needs to be addressed.

Council ability to be an effective regulator or enforcement agency is hampered by legislation, which

is reliant on enforcement through the Planning Scheme. It is noted that not every noise generating

use benefits from a planning permit and even when a planning permit is required, sometimes it is

not apparent at planning permit approval stage that a noise will be generated to a point of causing a

problem. Council cannot revisit its planning permits. At this point Council cannot directly enforce

SEPP N-1. Further Council’s cannot utilise the provisions of the Public Health and Wellbeing Act to

enforce the noise SEPPs due to the structure of this legislation. The EPA cannot therefore continue

to ignore its enforcement obligations.

The EPA should play a greater role in the enforcement of the SEPPs. Exploration is needed on

whether the Environment Protection Act 1970, provides a suitable framework for enforcement. The

current legislative framework that guides Council enforcement does not easily allow enforcement of

SEPPs for the reasons highlighted above. This needs to be acknowledged.

The view that both local government and the EPA are responsible for noise enforcement is

problematic as the complainant feels as if they are being pushed from “pillar to post”.

It is understood that the EPA is severely under resourced, with the expectation that Council will fill

the void created Council is equally under resourced in this regard. Furthermore Council’s cannot

effectively enforce due to legislation, expertise, technical skills and resources. A clear decision needs

to be made as to which tier of government is to be responsible for noise control enforcement. That

tier then needs to be given specific enforcement tools to deliver. If Local government is believed to

be the best placed then substantial training and resourcing would need to be provided and

appropriate cost recovery mechanisms put in place. At present the cost burden should be a State

Government responsibility

Another consideration to the introduction of state-wide controls is an issue with the overspill of

noise from one municipality to another and the consistency in expertise, knowledge, approach and

service levels that can be delivered through a state-wide agency. Having state-wide controls would

assist in the management of such complaints and prevent variable response between different

municipalities.

It is recommended that the enforcement of SEPPs, should be a joint responsibility between Council

and the EPA. An example of a state government agency undertaking collaborative enforcement is

the Victorian Commission for Gambling and Liquor Regulation (VCGLR). It has been observed that

VCGRL has a clear enforcement role, which greatly assists Victoria Police and Council. The EPA could

implement a similar model, which would greatly enhance the enforcement of SEPPs.

5.2 Overlap between objective and subjective tests for acceptable noise

A complaint can often be resolved by discussions and good will from all parties. In such situations a

subjective view is acceptable and a win-win achieved by compromise.

In other situations the attenuation of the noise can incur significant costs and in extreme cases result

in the closure or relocation of the business. These situations warrant an objective measure.

However when a complainant has a relatively minor issue but becomes entrenched, they can

demand that they be shown that there is compliance with an objective measure.

On occasions complainants do not accept the outcome of Council’s investigations and seek

assistance from local politicians or the Ombudsman. This leads to re-investigation even where the

matter has deemed to be merely annoying and no action can be taken. This again is a use of limited

Council resources. It is suggested that the EPA act as an arbitrator to settle disputes regarding

whether SEPPs are complied with, similar to the role VCAT plays in planning permit applications.

What are the advantages and disadvantages in having subjective and objective tests to determine

what noise is acceptable?

6 Encroachment

6.1 What is noise sensitive encroachment?

Moreland, like many inner urban Councils has a legacy of industrial and commercial buildings being

interspersed amongst residential areas. These uses often have existing rights and do not have nor

require a planning permit. We also have residential encroachment into industrial areas. Conflicting

uses then result in complaints to Council from residents who often abut industry or commercial

activity that have been present for up to 100 years.

Moreland has a continual issue in that land that was formerly zoned industrial is rezoned to

residential. This then brings residences to the door of noise generating industry. Stricter application

requirements at the rezoning stage and a mandatory referral requirement to EPA may assist in

addressing future compliances issues and protect ongoing industrial activity to retain employment

levels.

6.2 Noise sensitive encroachment and planning

6.3 Outdoor and indoor assessment of noise

Should compliance be assessed from inside a noise sensitive building and, if so, under what

circumstances?

It would be preferable to have noise assessment to occur outside the noise sensitive building, as the

acoustic integrity of buildings varies. This also poses some difficulties in terms of powers of entry, as

often acoustic assessments are done by consultants who do not have the power to enter property.

However it is agreed, measurements from within a building may be appropriate for existing use right

business should this enable a fairer assessment for the business it applying an agent of change

principal consistently.

6.4 Agent of change

What changes could be made to the noise SEPPs to complement an ‘agent of change’ principle?

Noise attenuation on new development would assist in mitigating impacts and would assist in

allowing viable businesses to continue. This approach needs some caution as the noise attenuation

measures are only effective from within the building, when all windows and doors are closed.

Another method that could be explored would be phased compliance for existing businesses. This

approach could acknowledge that the business has existed for many years in a location that did not

contain any sensitive uses. The introduction of noise sensitive uses can result in businesses being

forced to relocate. A phased model would afford the business time to improve their practice and a

timeframe to achieve compliance with SEPP.

The Planning Scheme protects existing business, via existing use rights. Existing use rights allow

business to continue, even if the use would be prohibited under the current zoning. The SEPP could

apply a similar principle to existing use rights, particularly for businesses that have existed for many

years, consistent with the agent of change principle or require a relaxed noise standard in the

circumstances of noise generation from premises with long user rights.

The limitation of Planning Schemes should be acknowledged including that some noise generating

uses are ‘as of right’ or the introduction of new sensitive uses are ‘as of right’, meaning Council

cannot legitimately impose noise conditions on planning permits. A state-wide standard enforced

uniformly by a centralised state agency with appropriate expertise is therefore necessary given these

limitations.

The City of Moreland, through the MSS review which is currently awaiting Ministerial approval

proposes to introduce local policy that seeks to implement the agent of change principles. The

current drafting of this policy is:

“Implement the ‘agent of change’ principle as follows:

Support the continued operation of existing noise generating uses, including live music

venues.

Require new residential developments and mixed use incorporating residential

developments to be designed to minimise the potential negative amenity impacts of

existing non-residential uses in the vicinity. For example, incorporate design and noise

attenuation measures to protect residents from noise and locate bedrooms away from

noise sources such as adjoining live music venues, late night entertainment venues,

industrial uses, garbage collections areas, vehicle accessways, rail lines and busy roads.

Encourage new noise generating uses, including live music venues, to integrate noise

attenuation measures as appropriate.

The State could implement change to Clause 13.04 (Noise and air) of the Planning Scheme, by

providing policy guidance that seeks to implement the agent of change principles.

Another mechanism that could be explored is a planning scheme overlay, similar to those that

protect residents from Aircraft noise. This overlay could apply to protect live music venues or

industry that provides significant employment. Providing a moratorium for pre-existing live music

venues could also be valid and form the basis for a Noise Attenuation Overlay, as a further

refinement to Clause 52.43 (Live Music and Entertainment Noise) of the Planning Scheme.

Documents

EPAI - 93 - Local Government. Moreland City Council ... · Moreland City Council advocates a future EPA which is resourced and equipped to face the environmental challenges of Victoria