Noise Sensitive Development Near Existing Industry - A Regulatory Void
A seemingly obscure and technical detail of the procedure for measuring compliance with the industry noise requirements of the Environment Protection Regulations 2021 (EP Regulations) has significant implications for new residential development in mixed use areas.
An important point of context is that the assessment require-ments for noise affected residential development sites depend on the source of the noise. For example, for sites affected by transportation noise, there has historically been greater scope to use dwelling sound insulation improvements to enable residential development. In the case of industry noise affected sites, the EP Regulations place the emphasis on controlling noise levels outside of dwellings; this means less scope to use sound insulation improvement to address noise levels, and the potential for new residential development to create compliance risks for existing industry.
Broadly, the complications of assessing residential development near industry sites were similar under the old SEPP N-1, except for a measurement procedure change introduced by the EP Regulations. Under both SEPP N-1 and the EP Regulations, industry noise could be measured inside a dwelling when there is no way to test the noise externally (e.g., on a balcony or through a window); compliance is then assessed by applying an indoor to outdoor adjustment to work out an outdoor noise level to compare with the noise limit. However, the subtle policy change is that SEPP N-1 set fixed values for the adjustment whereas the EP Regulations use the sound insulation of the dwelling in most cases.
This is clearly a technical detail of procedure, but the effect is significant. Under SEPP N-1, the procedure could be used to enable residential development to be backed against an industry site. For example, an apartment or townhouse development could design a blank and highly sound insulated wall facing the industry, with balconies, terraces and openable windows oriented away from the industry. Under the EP Regulations, this option can’t be used to the same effect. Further, Victorian policy does not provide clear guidance for councils or developers in these situations.
As a result, under the new EP Regulations, there is scope for different approaches to be applied, with widely differing implications for development opportunities. For example, in some areas, councils have taken the view that new residential development must not create a situation in which an existing business would no longer comply with legislated limits; the most stringent form of approach which can significantly constrain opportunities for taller residential development. In other areas, councils and regulators have taken a much less onerous approach which doesn’t restrict the built form of residential development, but leaves existing industry exposed to compliance risks and possible restrictions on operations.
These issues might seem familiar. The threat to live music venues from residential development in entertainment precincts has been a source of dispute for many years. This was recognised by regulators, and noise policy was changed to align with broader planning objectives for mixed use areas. The changes were brought about by implementing agent of change principles into planning schemes and the EP Regulations; this provided a way of accommodating new residential development near live music venues.
Unfortunately, while the same issues apply to residential and industry interfaces, the EP Regulations don’t include any provi-sions for this type of situation, and agent of change principles are not reflected in the regulations.
These situations are now also complicated by the introduction of the General Environmental Duty (GED) and the Environment Reference Standard (ERS) under the Environment Protection Act 2017 (EP Act). The GED establishes a mandatory obligation for noise producers to implement all reasonably practicable measures to reduce the risk of harm, including noise related amenity impacts. However, the EPA have noted that the GED is an obligation that also applies to residential developers, meaning projects near industry sites would need to demonstrate that all reasonably practicable measures have been taken to address the risks of industry noise.
Feedback from regulators on some projects has suggested that upgrading facade sound insulation to protect internal amenity is an appropriate response to the GED. However, some of the performance standards that have been proposed for this approach are not intended for assessing industrial noise, and this doesn’t address the EP Regulations compliance risks.Achieving Victoria’s broader housing and industry objectives would benefit from better alignment of noise and planning policy to address the changing landscape of industrial areas and brownfield development sites. This would ideally include agent of change principles, and provide guidance suited to the differing needs of minor and regionally significant industry. If the policy development that occurred for live music venues is anything to go by, the motivation for change will need to be driven by the professions that represent developers and industry alike.
Footnotes
This article first appeared in the VPELA Revue June 2022.
Authors
Travis Hancock
Justin Adcock
