General Environmental Duty and Noise
Resuming our discussion on the new environment protection framework and the noise related repercussions, in this article, we tackle the cornerstone of the Environment Protection Act (EP Act 2017)
The introduction of a general environmental duty (GED) into the EP Act 2017 represents the most significant change to the noise assessment framework in Victoria. Importantly, the GED is a central element of the new legislation and is separate to the requirement to comply with mandatory limits set by the EP Regulations.
Previously, compliance with the EP Act 1970 was able to be demonstrated by an objective assessment against mandatory limits defined by SEPP N-1. However, under the EP Act 2017, this is no longer the case. The requirement to meet mandatory noise limits remains, but this is not sufficient to demonstrate compliance with the EP Act 2017. Now, compliance with the GED must also be demonstrated.
The requirements of the GED therefore warrant closer inspection. The EP Act 2017, section 25, states:
A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.
The potential risks requiring reduction extend to noise related amenity impacts.
The GED requires that all reasonably practicable steps be taken to minimise the risk of harm of noise and is independent to the status of objective compliance with the Noise Protocol¹.
Our interpretation of the GED is that it could be applied to a use that emits noise to the environment and, equally, could be applied to a proposal that introduces a noise sensitive use into a high noise environment (encroachment article to come in future edition of VPELA Revue).
Conceptually, there is merit to the GED.
The noise limits defined previously in SEPP N-1 and the Noise Protocol do not restrict noise to inaudible noise levels, nor are they intended to prevent noise related annoyance in all cases. Instead, the noise limits are set at values which aim to balance the needs of industry for a practical environmental noise management framework with the protection of amenity for most people. This means that noise that complies with the noise limits may still cause annoyance and impact sensitive locations.
Under the EP Act 1970 and SEPP N-1, there was no clear incentive to reduce this risk, even if basic and readily practical options were available to provide a better outcome. Recognising the compromise that is inherent in the noise limits, the GED now establishes the incentive to go further.
However, what constitutes ‘reasonably practicable’ is a tricky proposition and will likely become fertile ground for debate. The EPA provide a general guidance approach² for all industries and environmental effects to determine what is ‘reasonably practicable’. Defining what are reasonably practicable noise mitigation measures for each industry and setting has the potential to be a complex and collaborative process.
Another important point of context is that noise levels, in terms of decibels, are just one of many factors that contribute to the risk of noise related amenity impacts and in many cases community attitudes and reaction to noise don’t correlate well with noise levels. This means that modest reductions in noise levels may not yield any material reduction in the risk of noise related amenity impacts, particularly where noise levels are already low, as the law of diminishing returns becomes relevant.
Often other factors such as visual impacts and community engagement have a strong influence on community reaction to noise. Time will tell how these types of ‘mitigations’ fair as measures to address the GED when placed under the scrutiny of the various Responsible Authorities.
This is a significant change in thinking for applicants; the noise limits developed under the Noise Protocol are no longer a target level of noise that one can emit up to.
Early consideration of noise emissions and risk reduction are more important than ever, and often it is in the concept stage of a project that a lot of ‘easy wins’ for noise reduction can be identified as opposed to installing cost prohibitive acoustic mitigation measures once a compliance problem becomes evident.
The above presents our current interpretation of the GED based on a relatively small sample of tested cases. It is likely that there will be movement in this space in the coming years as precedents for following certain methods to address the GED are established.
Footnotes
¹ EPA Publication 1826.4 Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (the Noise Protocol)
² EPA Publication 1856 Reasonably Practicable
This article first appeared in the VPELA Revue March 2022.
Authors
Travis Hancock
Justin Adcock
