Late Reports Agenda of Council Briefing

Council Briefing SUPPLEMENTARY Agenda 4 February 2020

5.6 SUPPLEMENTARY REPORT: Comment on draft WAPC Position Statement: Special Entertainment Precincts and DWER Consultation Paper

Attachments: 1. City of Vincent Submission - Planning for Entertainment Noise in the Northbridge Area November 2018 ⇩

2. WAPC Draft Position Statement - Special Entertainment Precincts November 2019 ⇩

3. DWER Consultation Paper - Managing Amplified Noise in Entertainment Precincts November 2019 ⇩

4. City of Vincent Submission February 2020 - WAPC Special Entertainment Precincts ⇩

5. City of Vincent Submission February 2020 - DWER Managing Noise in Entertainment Precincts ⇩

Recommendation:

That Council:

1. ENDORSES Attachments 4 and 5 as the City of Vincent’s submissions in response to the Western Australian Planning Commission’s draft Position Statement: Special Entertainment Precincts and the Department of Water and Environmental Regulation’s Managing Amplified Music Noise in Entertainment Precincts Consultation Paper, respectively; and

2. NOTES the City will forward the submissions to the Western Australian Planning Commission and Department of Water and Environmental Regulation.

Purpose of Report:

To consider endorsing the City’s submission on the Western Australian Planning Commission’s (WAPC) draft Position Statement: Special Entertainment Precincts and the Department of Water and Environmental Regulation’s (DWER) Managing Amplified Music Noise in Entertainment Precincts Consultation Paper.

Background:

In September 2018 the Department of Planning, Lands and Heritage sought comment on a Consultation Paper – Planning for Entertainment Noise in the Northbridge Area. The September 2018 paper explored six key reform areas as follows:

· Agent of change – A principle that sees primary responsibility for sound attenuation in buildings resting with the party that is making changes to the environment, such as new development and redevelopment, and would apply to both noise sensitive and noise emitting developments;

· Special Control Areas (SCA) in Local Planning Schemes - Designation of a SCA will apply special planning controls to protect the health and amenity of residents and the viability of entertainment venues; and maintain the special character of the entertainment precinct;

· Noise Impact Assessments - Planning proposals for new noise emitting and noise receiving developments are required to undertake a noise assessment to determine the level of noise to be attenuated through design and construction measures;

· Construction Standards - Planning proposals for new noise emitting and noise receiving developments are required to demonstrate how construction and design will achieve acoustic attenuation to comply with the standards set in Noise Regulations;

· Notice on title – Requirement for notice on title for all approved planning proposals affected by entertainment noise; and

· Amendments to Noise Regulations - Indoor areas protected only (with doors and windows closed). This is in contrast to the existing principles of the Environmental Protection Act 1986, where the noise emitter, for example a live music venue, is responsible for ensuring sound levels received at a noise sensitive premises, such as a residence comply with the requirements of the Environmental Protection (Noise) Regulations 1997 (the Noise Regulations).

The City provided a submission on the discussion paper in November 2018 supporting the State Government’s intention to further investigate options to better manage land use conflict and amplified music noise in entertainment precincts. This included requesting the Department to ensure an outcome that is scientifically robust and appropriately balances the desire to support existing and future entertainment venues whilst adequately managing the noise impacts on sensitive land uses. The City’s submission on this paper is included as Attachment 1.

The WAPC has since reviewed all comments received and produced a draft Position Statement: Special Entertainment Precincts. A special entertainment precinct is proposed to comprise a diverse mix of land uses, including entertainment venues, which contribute to an active night-time economy. This document was released in November 2019 and a copy is included as Attachment 2. The draft position statement no longer aligns with the agent of change principle and instead it sets out the WAPC’s position on how entertainment precincts could be designated as SCAs in a local planning scheme.

To complement the WAPC’s draft position statement, DWER has concurrently released the ‘Managing Amplified Music Noise in Entertainment Precincts’ Consultation Paper. A copy of the document in included as Attachment 3. The paper provides three options and/or proposed changes to the Noise Regulations that may be required to facilitate the implementation of the draft position statement from the WAPC. The State Government are currently seeking comments on both documents.

Details:

A summary of the key proposals in each document is included below.

1. WAPC Position Statement

Key Proposals

The draft Position Statement provides guidance to local governments to better manage land use conflicts and amplified music noise in entertainment precincts through a local planning scheme. It is suggested that this be done through a scheme amendment to introduce a special control area (SCA).

In order to support the establishment of a special control area, the following material is likely to be required:

· a robust problem definition statement, including current noise levels and any entertainment noise-related complaints;

· evidence of consultation with the local community and adjoining/impacted local governments;

· demonstration of a significant night time economy supported by an economic assessment;

· evidence of an established strategic vision for the precinct, including the existing and/or intended land use mix and the potential for future entertainment venue development; and

· specific performance criteria, development requirements and/ or guidance to be applied to development through a local planning scheme, redevelopment scheme or local planning policy.

These matters would be addressed by the proponent for such an amendment which could be the local government or an applicant. The position statement will guide the WAPC’s decisions regarding proposed scheme amendments to introduce SCAs. It does not require SCAs to be prepared or provide guidance on where they may be appropriate.

The designation of a SCA/special entertainment precinct would address the likes of the following:

· Establishment of a maximum amplified music level for entertainment noise. This would be measured at street-level, rather than at a receiver (i.e. residence);

· A requirement that new ‘noise-sensitive’ developments (e.g. residential) be planned, designed and constructed to achieve a set level of ‘building transmission loss’ to achieve a maximum internal noise level. No noise level would apply to external areas;

· Conversely, new noise emitting premises (e.g. entertainment venues) would need to be designed and constructed to ensure compliance with the set amplified music noise level is achieved;

· Existing entertainment venues emitting amplified sound would need to ensure compliance with the set amplified music level of the special control area;

· The special control area would contain requirements for a noise assessment to be undertaken for all new development. These assessments would determine the attenuation measures necessary and would be prepared by a qualified acoustic consultant; and

· A Section 70A Notification would be included as a condition of development approval for all new noise-sensitive premises, informing prospective buyers/owners of the likelihood of higher noise levels within the precinct.

Key Comments

Any change to the City’s Local Planning Scheme of this nature would require significant investigation to determine whether any location was suitable, and subsequently undertaking a noise study to establish an appropriate sound level for that location. A change of this nature in the City’s scheme would shift the responsibility of establishing suitable sound levels from the State Government to Local Government. This represents a significant shift, which has not been accounted for, in workload and responsibility to Local Government taking on the regulatory burden and responsibility that currently lies with the State Government.

The City would like to work with the Western Australian Planning Commission and the Department of Water and Environmental Regulations to address the following matters prior to finalising the position statement:

	Matter	Recommendation
1.	The initial paper by the WAPC sought to protect established live music venues in line with the principles of Creative WA, however the proposed changes have been developed to cater to large entertainment precincts with a high concentration of entertainment venues (namely Northbridge). It seemingly fails to accommodate for isolated but significant local venues which cannot reasonably be considered to represent entertainment precincts, but which nevertheless contribute significantly to the cultural economy and provide for local activity and diversity.	That the Commission, in consultation with the Department of Water and Environmental Regulations, undertake further investigation to establish a suitable option that balances the needs of supporting dispersed but culturally and economically significant live entertainment venues, with the needs of noise sensitive receivers in their locality.
2.	The position statement fails to address the conflict(s) that will exist where noise sensitive land uses are constructed or are already existing adjacent to a special control area. In the City of Vincent’s case, the proposed special control area of the City of Perth (Northbridge) directly abuts residents of Vincent along Newcastle Street. It is not clear how this would be managed.	That the Commission, in consultation with the Department of Water and Environmental Regulations, investigate this conflict and provide a suitable solution prior to progressing with the position statement or amendments to the Noise Regulations. This includes providing guidance on investigation and enforcement with respect to cross boundary jurisdiction.
3.	The proposed approach will mean that existing noise sensitive premises within a designated entertainment precinct may experience higher than desirable noise levels. As the paper states, it is unlikely that these buildings have been adequately constructed or attenuated to accommodate for the higher sound levels of the precinct with any remediation costs to fall with the Owner.	That the City request the Commission engage with the Department of Water and Environmental Regulations to provide guidance as to how this may adequately be addressed.
4.	There is insufficient information to identify what support, if any, is proposed to be provided to Local Government in establishing set external sound levels of an entertainment precinct.	Recommended to provide support to Local Government to ensure a level of consistent implementation.
5.	The National Construction Code (NCC) outlines requirements for attenuating buildings. The Planning and Development Act outlines that Building standards prevail. Where a proposal needs to be attenuated to a high standard in accordance with a Local Planning Scheme how can the City require that the high standard be maintained when the requirements of the NCC are lesser.	Consideration and commentary regarding the NCC and how Local Government can require a higher standard of noise attenuation than that offered in the NCC.
6.	Establishing a special control area/entertainment precinct in a local planning scheme would require significant time and costs for the City.	As there is shift of roles/responsibilities from State to Local Government the City requests comment from the Department as to whether opportunities will be presented to seek grants or funding to undertake this work.

2. DWER Managing Amplified Music Noise

Key Proposals

To complement the draft position statement, the DWER Consultation Paper sets out three reform options, to provide for entertainment venues to exceed the assigned (prescribed) noise levels in the Environmental Protection (Noise) Regulations 1997 (Noise Regulations).

The current framework for regulation of noise is through the Environmental Protection Act 1986 and the Noise Regulations and is designed to protect the health and amenity of receivers, while still allowing for some activities that cannot reasonably and practicably meet noise limits (such as temporary sporting, cultural and entertainment events). The Noise Regulations set out levels that are permitted to be received by particular land uses (i.e. residential, commercial, industrial) at particular times of day. The responsibility for compliance with acceptable noise levels rests with the generator of the noise, irrespective of which use was first established. The Regulations are currently administered by Local Government.

The paper provides three options to complement the proposed planning approach, for the management of amplified music in entertainment precincts, summarised below.

Option 1 – ‘Status Quo’.

This option involves no amendment to the Noise Regulations, with Local Government continuing to manage noise complaints as they already do. Protection for all noise sensitive receivers remains, land use planning conflicts may persist and noise emitters remain responsible for compliance with the Noise Regulations. In the context of an entertainment precinct, should a noise complaint be justified, a venue may be required to alter the way it conducts its business to comply with the Noise Regulations. As the paper outlines, the State Government is committed to exploring reforms to support live music and entertainment venues in WA. It is considered that Option 1 will not easily facilitate progress as land use conflicts may remain in areas trying to strike a balance between residential and commercial uses. As reforms to manage these issues has not yet occurred, the City has an existing Sound Attenuation Policy (7.5.21) which provides a clear framework to minimise the adverse impacts of noise for the sustainable co-existence of a mix of land uses within the City. As a guiding document, the policy has provided better outcomes for new developments in areas where higher sound levels can be expected. It is worth noting, the City experiences a low number of noise complaints associated with encroaching land uses. It is considered the Policy has played an important role in effectively managing this, in the context of new developments.

Option 2 – ‘agent of change principle and indoor assigned levels’.

If implemented, this option would require that the person or business responsible for a new development in an entertainment precinct, would bear the cost associated with the protection of noise-sensitive receivers (primarily residents). New entertainment venues would also have to design and construct their premises sufficiently to implement noise attenuation measures at their business and control sound. Furthermore, it proposes to set indoor sound levels as the basis for assessment against the Noise Regulations (note: the current Noise Regulations set outside sound level limits). This principle was the basis for the initial consultation paper released by the Department of Planning, Lands and Heritage in 2018 (Attachment 1). It was intended to provide protection for existing live music venues, from encroaching noise sensitive (residential) development. This option presents implementation and enforcement issues, a lack certainty for entertainment venues and provides no meaningful consideration to existing noise sensitive receivers (i.e. residents). For these reasons, the City does not support this option.

Option 3 – ‘special entertainment precincts’.

The draft position statement by WAPC does not (and indeed cannot) change the provisions currently contained within the Noise Regulations. Option 3 is a proposal to amend the Noise Regulations to complement the position statement. As detailed above, a local planning scheme would set a capped external amplified music level for an Entertainment Precinct. Entertainment Venues within the precinct would then be able to apply for an approval to exceed the existing assigned noise levels in the Noise Regulations.

These are proposed to be called ‘Venue Approvals’ and will be provided on an ‘opt-in’ basis only. It is intended that these approvals would be assessed and granted by the relevant local government CEO, and any approval would be subject to operational conditions and might also be time-limited. Venue approvals will generally be issued in accordance with the external amplified music level identified in the special control area. All venues which are not subject to these special approvals will continue to be assessed based on the existing assigned levels set out in the Regulations.

The implications to noise sensitive receivers includes:

· Existing noise sensitive receivers (i.e. residences) in a special entertainment precinct are unlikely to be appropriately acoustically treated to attenuate for the external amplified sound levels set within the planning scheme. These sound levels in the scheme will be higher than those in the Noise Regulations. Subsequently these residents may experience higher than desirable noise levels. The costs of retro-fitting a building would likely be imposed on the owner;

· For all new residential development in a special entertainment precinct, protection from the external amplified music levels would be limited to indoor living spaces only. Residents would not be able to expect quiet noise levels with windows and doors open or in external areas of their properties i.e. balconies/yards;

· For developers, it will provide certainty when or if they are considering development in a special entertainment precinct as a new standard for the design and construction of a building will be clearly set out. This will be represented in the scheme and be directly to the external amplified music noise level in the local planning scheme; and

· The constructions costs of development in a special entertainment precinct are likely to increase due to the attenuation measures (such as ‘winter gardens’, glazing, acoustic baffling and slab thickness) necessary to meet the scheme requirements.

Outcomes for entertainment venues who obtain a Venue Approval under the Noise Regulations includes:

· There would be increased certainty for a business’s operations (as management and control measures will be set out in the venue approval). Should the entertainment venue be successful in obtaining a venue approval and maintain compliance with that approval, their operations would be exempt from meeting compliance with the assigned levels as stipulated in the Noise Regulations;

· Venue approvals will effectively be ‘capped’ at the level set in the scheme, to future proof the area for a given level of noise.

The paper states that the City of Perth is currently contemplating a precinct based approach for Northbridge, given the area has been subject of significant deliberation, modelling and research for almost two decades. The Northbridge precinct contains 58 identified entertainment venues and is generally regarded as Perth’s premier entertainment precinct. The City of Perth has assigned a noise level of up to 95 decibels (dB) for the core entertainment area and up to 79 decibels (dB) for the surrounding fringe area. The sound level of 95dB is typical of that experienced by residential properties close to a venue hosting a rock concert or the equivalent of a ‘factory floor’. In establishing these standards, the City of Perth has acknowledged that attenuating sound levels of this magnitude (particularly in the core area) would render most residential development unviable.

It is worth noting an external amplified sound level at 79dB (@63Hz) is the effective limit to protect health and amenity of the occupants of new residential developments in an entertainment precinct through building and construction standards without becoming financially or practically restrictive.

Any application of the proposed reforms discussed in either paper in other locations such as the City of Vincent, would require thorough technical examination of the issue as well properly quantifying the economic, financial and amenity impacts of such changes. In addition, it will be crucial to undertake meaningful communication and consultation with all affected parties.

Key Comments

The City would like to work with the Western Australian Planning Commission and the Department of Water and Environmental Regulations to address the following matters prior to progressing with any proposed reforms of the Noise Regulations:

	Matter	Recommendation
1.	The paper does not provide details on what a Venue Approval may look like with regard to conditions (such as will a venue approval be time limited? what type of conditions can be applied?).	The City would request the Department consult with all relevant stakeholder prior to a decision being made.
2.	There is limited information in the paper on whether an amendment to the Noise Regulation would enable a venue to emit higher sound levels (in the prescribed area) that those set in a local planning scheme.	The City considers that this should be clarified, to ensure applications for a Venue Approval are made in line with the set sound levels in the local planning scheme.
3.	Will applicants (of a Venue Approval in a special entertainment precinct) have the ability to make an appeal to a condition of approval, namely the capped sound level of the precinct?	To clarify, the City considers this would be counterproductive to the intent of an established special entertainment precinct.
4.	The consultation paper fails to address the conflict(s) that will exist where noise sensitive land uses are constructed or are already existing adjacent to a special control area. In the City of Vincent’s case, the proposed special control area of the City of Perth (Northbridge) directly abuts residents of Vincent along Newcastle Street. It is not clear how this would be managed.	That the Department, in consultation with the WAPC investigate this conflict and provide a suitable solution prior to progressing with the position statement or amendments to the Noise Regulations. This includes providing guidance on investigation and enforcement with respect to cross boundary jurisdiction.
5.	In combination with the draft position statement of the WAPC, the implementation of Option 3 will likely see existing noise sensitive premises within a designated entertainment precinct experience higher than desirable noise levels. It is unlikely that these buildings have been adequately constructed or attenuated to accommodate for the higher sound levels of the precinct with any remediation costs to fall with the Owner.	That the City request the Department, in consultation with the WAPC further investigate this issue to provide guidance as to how this may adequately be addressed.
6.	The proposed reforms seemingly fail to address cumulative noise from multiple venues next to each other. Further the impact when new venues are established in an entertainment precinct.	That the Department investigate this issue and propose a resolution to adequately address and manage the impacts.
7.	Whilst there is a proposal to consider placing a Notification on Title for landowners in a special entertainment precinct (as a mitigation/control measure), it must be acknowledged that such notifications will only apply to new development and in any event, is often only effective on Owner-Occupier dwellings. In the City’s experience, tenants are often not made aware of such issues prior to occupying a dwelling.	It is recommended that additional measures are also pursued to ensure existing and future residents are made aware of the noise, the potential scale of impact on amenity, what can be expected and any processes for recourse.
8.	With reference to the enforcement of a venue approval, that the penalties for non-compliance be proportionate to the offence, having regard to the flexibility already afforded to those Venues.	The City supports proportional enforcement options should a breach of a venue approval exist. For clarity, the City considers that a breach of a condition of venue approval should be consistent with a Tier 2 offence of the Environmental Protection Act 1986.

Consultation/Advertising:

The closing date for submissions on the WAPC draft position statement and the DWER consultation paper is 14 February 2020.

Legal/Policy:

· Environmental Protection (Noise) Regulations 1997;

· Local Planning Scheme No. 2; and

· Local Planning Policy No. 7.5.21 – Sound Attenuation.

Risk Management Implications:

Low: It is low risk for the City to prepare a submission on the WAPC draft position statement for Special Entertainment Precincts and the DWER consultation paper.

Strategic Implications:

This is in keeping with the City’s Strategic Community Plan 2018-2028:

Thriving Places

We encourage innovation in business, social enterprise and imaginative uses of space, both public and private.

Sensitive Design

Our planning framework supports quality design, sustainable urban built form and is responsive to our community and local context.

SUSTAINABILITY IMPLICATIONS:

Nil.

Financial/Budget Implications:

There are no financial implications relating to making a submission on the draft position statement or consultation paper. However, the establishment of an Entertainment Special Control Area/s within the City of Vincent would require specialist modelling and assessment of economic and acoustic impacts which will require adequate resourcing and consultancy budget.

Comments:

The City supports the intent behind the proposed reforms to better protect the ongoing vitality of entertainment precincts within Western Australia. The changes have particular relevance to Vincent given the City’s strong desire to have a vibrant 24-hour city, the prevalence of existing entertainment music venues in our Town Centres, along with the City’s strategic desire to see an increase in residential accommodation within these areas. The Leederville Town Centre and the Jazz Precinct planned as part of the Arts Development Action Plan 2018-2020 are opportune areas where a SCA could be considered.

Whilst highly practical to do so in Northbridge, where there is a high concentration of entertainment venues in a single locality, the creation of a similar special entertainment precinct for Vincent is complicated by the dispersed nature of entertainment land uses. Designating one area of the CBD as an ‘entertainment precinct’ subject to relaxed noise regulations may have the unintended consequence of clustering entertainment land uses in a single area. This in turn could have undesired implications for land use diversity in Town Centres or the like. If the City were to pursue a special entertainment precinct for Vincent, its extent would need to be carefully considered not only to factor into account existing venues but to consider the desired future land use mix and character of Vincent.

The issue at hand is inherently complex and has the ability to impact both an important local industry and a significant number of residents. The City supports the intent of the draft position statement by WAPC on Special Entertainment Precincts but notes that any changes to the Noise Regulations needs to be balanced to ensure it is supported by extensive scientific research to ensure the wellbeing of affected residents is not unduly compromised.

It is recommended Council endorse the City’s proposed submissions for the reasons detailed above and note the queries and concerns raised for which a response has been requested (Attachment 4 and 5).