Environmental Health Practitioners Australia – Industrial Noise Mathew Sherwell | Senior Associate 2 August 2013

Overview – What is industrial noise – What are the controls on industrial noise  Nuisance  Environment Protection (Residential Noise) Regulations 2008  Others – Investigation and evidence

What is industrial noise?  Commercial and industrial noise includes noise from industry, commercial premises, office blocks, shops, mines and quarries and some farming activities (EPA website)  Examples include – air compressors, cooling machinery, vehicles, alarms etc

What are the controls?  Nuisance (s.61 PHWA)  Unreasonable Noise (48A(3) & (5) EPA) – Residential noise regulations

 What other standards are available? – SEPP N-1 & Noise from industry in regional Victoria

Flow chart – Using SEPP & guidelines Noise Complaint

Is the noise a contravention of legislation

Yes

Nuisance

What legislation is contravened

Unreasonable noise

No How do I use SEPP & guideline

End

The reasonableness of the use of the land The noise

Used as part of the assessment of the reasonableness of the noise

What are the controls? - Nuisance  Section 61, Public Health and Wellbeing Act 2008 (1)

A person must not(a)

cause a nuisance; or

(b)

knowingly allow or suffer a nuisance to exist on, or emanate from, any land owned or occupied by that person.

Nuisance  What are the elements of nuisance? – Identity, the identified person, did cause, a nuisance that was dangerous to health or liable to be dangerous to health or offensive. – Identity, the identified person, did knowingly allow – or suffer, a nuisance, to exist on or emanate from, land owned or occupied by that person, and the nuisance was dangerous to health or liable to be dangerous to health or offensive.

Nuisance  Nuisance – private or public  Private nuisance - An actionable nuisance is incapable of exact definition (Bamford v Turnley (1860) 3B& S 62)  The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land

An example

What are the controls – Environment Protection Act 1970  S. 48A(3): – – Identity – A person – Who emits or causes or suffers to be emitted

– unreasonable noise – from any residential premises

Environment Protection Act 1970  ‘residential premises’ includes – – Any land, building or appurtenances used for or in connection with any residential premises; – Any outbuilding situated on land used in connection with any residential premises; and – Any land upon which a residential premises is under construction.

Environment Protection Act 1970  What constitutes ‘unreasonable noise’ depends on: – the volume, intensity or duration; and – the time, place and other circumstances in which it is emitted. (s48A(4)) – or – it is deemed unreasonable. (s48A(5))  Does this sound a bit like the nuisance test?

Environment Protection Act 1970  What is deemed unreasonable:– Motor vehicles (including earthmoving machinery); – Electric or pneumatic power tools and air compressors; – Music; and – Other electrical equipment.

Environment Protection Act 1970  Exemptions from 45A(5):– Group 1 & 5 for Saturday - if the motor vehicle is earthmoving machinery (not using impacting, vibrating or rotating implement operated by hydraulic or pneumatic means) or a concrete dispensing truck, or compaction plant being a self-propelled single drum vibrating roller or non-vibrating compaction machinery - if the premises is on a fringe residential subdivision and it is more than 35 m from the nearest point of the property boundary of the closest other residential premises.

Are we still awake?

Environment Protection Act 1970  Exemptions from 45A(5):– Group 1 & 5 for Saturday - if the motor vehicle is earthmoving machinery using impacting, vibrating or rotating implement operated by hydraulic or pneumatic means or compaction plant or any type of motor vehicle or equipment listed in Reg 7(2) or any item in Group 2 except a pile driver or any item from Group 5 – if the premises is on a fringe residential subdivision and it is more than 200 m from the nearest point of the property boundary of the closest other residential premises.

Environment Protection Act 1970  Exemption from 45A(5) – A premises is exempt from Groups 1, 2, & 5 if the premises is on land not occupied by another person as a residents and residential premises are under construction and no part of which is zoned residential and has or will have when constructed 4 or more storeys above ground level or 2 or more storeys below ground level.

Others  Section 114 and 126 of the Planning and Environment Act 1987  Local Laws  Environment Protection Authority

Investigation  Investigation and evidence - overview – Investigation is working through a complaint to determine the guilt or otherwise of an accused. – Evidence is used to prove a fact to prove an element of the offence.

– Investigation involves the gathering of evidence.

Investigation - example –

A food manufacturing plant takes meat product, breaks it down, cooks it and places the cooked food into packets. Food is distributed from the land.

–

Residents in nearby streets are complaining about noise from the compressors running the cool rooms, early morning deliveries and late night rubbish pick ups. In addition, the workers park in the adjoining streets and make noise as they walk to work.

–

The proprietor is a company – ABC Pty Ltd with four directors – two which are non executive.

Evidence  Residents – take witness statements  You and your experts

 Interview of the accused – who?  Other evidence – documents, photographs, plans, etc

Interviewing witnesses  How do you interview a witness and take a statement. – PEACE model 

Planning and preparation



Engage and explain



Account



Closure



Evaluation

Interviewing witnesses

Interviewing  Interviewing –accused – PEACE model  Planning and preparation  Engage and explain  Account  Closure  Evaluation

Environmental Health Practitioners Australia – noise seminar Mathew Sherwell | Senior Associate Direct 61 3 9240 0873 [email protected]