Environment Protection (Noise) Policy 2007 (SA)

The Environment Protection Authority (EPA) has released the draft Environment Protection (Commercial and Industrial Noise) Policy 2022 (SA) (New Policy) for public comment.

The New Policy will repeal the current Environment Protection (Noise) Policy 2007 (SA) (Current Policy) and implement changes to reflect the introduction of the Planning, Development and Infrastructure Act 2016 (PDI Act) and to achieve greater consistency with the Local Nuisance and Litter Control Act 2016 (Local Nuisance Act).

Ensuring consistency with the PDI Act

A primary purpose of the New Policy is to substitute references to the now repealed Development Act 1993 (SA) and development plans with references to the PDI Act and Planning and Design Code.

This includes:

• definitional changes – for example, the term ‘designated area’ would be substituted for ‘locality’ to avoid any confusion with ‘locality’ as defined in the PDI Act;
• determination of the relevant land use category for the purposes of the policy with reference to the land use promoted under the applicable Zone or Sub-zone in the Planning and Design Code, rather than development plans.

Indicative noise levels for each of the land use categories will not change under the New Policy. However, these may change in their application to specific zones and subzones under the Code. The land use category determined by the EPA to now apply may differ from that which previously applied.

To provide greater clarity, the EPA has prepared the ‘Draft Indicative noise level guidelines for the Environment Protection (Commercial and Industrial) Noise Policy 2022’, which can be found here. Councils should take care in reviewing relevant zones and sub-zones to ascertain whether the draft guidelines accurately reflect the primary land use/s as envisaged in the Code.

Reducing overlap with Local Nuisance Act

The New Policy seeks to reduce overlap with the Local Nuisance Act by omitting ‘Part 6 – Special noise control provisions’ from the Current Policy. This Part prescribes certain offences relating to specific types of noise which may adversely affect the amenity of an area – largely domestic noise but also construction noise.

The noise dealt with in these provisions significantly overlaps with noise constituting a local nuisance under the Local Nuisance Act. By removing Part 6, the New Policy will reinforce the role of councils to take action against noise constituting a local nuisance.The EPA will through its licensing function, continue to regulate noise created by activity authorised by an environmental authorisation, which is exempt from the application of the Local Nuisance Act.

Part 6 also contains specific provisions relating to frost fans. By omitting those provisions from the New Policy, frost fans will be regulated in the same way as any other commercial or industrial noise source, and without specific guidance as is contained in Part 6 of the current policy, which includes the assessment of noise measurements to be taken both outside and inside for frost fan developments.

Intermittent Noise

Intermittent noise has been included as a further noise characteristic in recognition of the fact that the intermittency of noise can contribute to its nuisance. The following definition is provided for ‘intermittent characteristic’ in the New Policy: ‘a noise has an intermittent characteristic if the noise level suddenly changes by at least 5dB(A) at least 3 times during the assessment period that applies under clause 13(1)(b)’.

Take Home Messages

The New Policy will bring about changes to clarify the application of this environment protection policy within the current planning system, as well as the respective role of the EPA and councils in regulating noise under the Local Nuisance Act.

While potentially simplifying the regulatory environment, it may have practical implications for compliance-based activity under the Local Nuisance Act. In particular, the New Policy may not provide the same level of guidance as to appropriate limits and controls for certain noise sources including fixed domestic machine noise (air-conditioners, pool filters etc), domestic activity, rubbish collection, burglar alarms, construction activity and front fans. As such, local government’s response to the New Policy should consider a Local Nuisance Act perspective, in addition to considering implications in terms of development assessment.

Councils should also be aware of the new noise characteristic which has been included in the New Policy, and that the applicable land use category in a designated area may be changed now that this will be determined with reference to the zoning of areas under the Planning and Design Code.

Public consultation on the New Policy will close at 5.00pm on Wednesday, 23 November 2022. It is anticipated that the New Policy will come into effect by the end of the financial year.

As part of our ongoing CPD training program for Accredited Professionals, Norman Waterhouse will be delivering a training session ‘Acoustics in the Planning System’ which will consider the New Policy in more detail.

For more specific information on any of the material contained in this article, please do not hesitate to contact Peter Psaltis on +61 8 8210 1297 or ppsaltis@normans.com.au or Claire Ryan on +61 8 8210 1294 or cryan@normans.com.au.