Environmental Management and Pollution Control (Miscellaneous Noise) Regulations 2004

Environmental Management and Pollution Control (Miscellaneous Noise) Regulations 2004

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Environmental Management and Pollution Control Act 1994 .

RICHARD BUTLER

Governor

By His Excellency's Command,

JUDY JACKSON

Minister for Environment and Planning

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Environmental Management and Pollution Control (Miscellaneous Noise) Regulations 2004 .

2.   Commencement

These regulations take effect on the day on which their making is notified in the Gazette.

3.   Interpretation

(1)  In these regulations –

Act means the Environmental Management and Pollution Control Act 1994 ;

airconditioner means an apparatus that is defined as –

(a) a non-ducted airconditioner or non-ducted heat pump in Australian/New Zealand Standard AS/NZS 3823.1.1; or

(b) a refrigerated package airconditioner system in Australian Standard AS 1861.2;

aquatic event means any event where motor vessels are used for recreation, competitive racing, speed trials or performance trials;

A-weighted sound pressure level means the A-weighted sound pressure level as defined in Australian Standard AS 1055.1-1997 Acoustics – Description and Measurement of Environmental Noise – General Procedures;

car-type vehicle means –

(a) a car; or

(b) a utility truck, panel van or other motor vehicle derived from a car design; or

(c) any other vehicle with 4 or more wheels that is built mainly to carry not more than 9 people including the driver;

dB(A) means decibel expressed as A-weighted sound pressure level;

domestic premises means any building used for human habitation, including the curtilage of the building or, if the boundaries of the curtilage are not ascertainable, the land within 25 metres from the building;

GVM means GVM as defined in the Vehicle and Traffic Act 1999 ;

manual means the Noise Measurement Procedures Manual issued under Part 5 ;

mobile machinery means machinery as specified in Schedule 2 or 3 ;

motor bike means motor bike as defined in the Vehicle and Traffic Act 1999 ;

motor trike means motor trike as defined in the Vehicle and Traffic Act 1999 ;

motor vehicle means motor vehicle as defined in the Vehicle and Traffic Act 1999 ;

motor vessel means a vessel propelled by a motor on water;

NEP means net engine power determined in accordance with Australian Design Rule Number 28/01 under the Motor Vehicle Standards Act 1989 of the Commonwealth;

off-street area means an area that is not a public street;

operate includes drive;

outboard motor means a motor designed to propel a motor vessel and to be easily fitted to or easily removed from the vessel;

portable apparatus includes any fixed apparatus that can be easily demounted and transported without major disassembly;

public street means public street as defined in the Traffic Act 1925 ;

racing event means any event where motor vehicles are used for competitive racing, speed trials, performance trials or recreation;

recreational facility means any facility used solely for recreational and non-competitive purposes by motor vehicles or motor vessels;

shop means a building, part of a building, place or other premises in or at which a business of selling goods by retail is carried on;

vessel means vessel as defined in the Marine and Safety Authority Act 1997 .

(2)  A reference to an Australian Standard or to a New Zealand Standard in these regulations includes, unless a particular edition is specified, a reference to an amendment of the standard, whether the amendment is published or issued before or after the commencement of these regulations.

(3)  In subregulation (2), "amendment" means –

(a) the omission of matter; and

(b) the insertion of additional matter; and

(c) the omission of matter and the substitution of other matter.

4.   Measurement of noise

For the purposes of these regulations, but subject to regulation 25(6)  –

(a) any measurement of noise or any test of a noise source must be carried out in accordance with the manual; and

(b) the level of any noise is taken to be the sound pressure level of that noise expressed in dB(A).

PART 2 - Emission of certain noises

5.   Noise emitted from certain motor vehicles in off-street areas

(1)  Unless an approval is granted by the Director under regulation 26 , a person must not operate any motor vehicle specified in Schedule 1 in an off-street area if it emits a noise greater than the level specified in respect of that motor vehicle in that Schedule measured at 0.5 metres from the motor vehicle's exhaust outlet when stationary.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  Subregulation (1) does not apply to a motor vehicle referred to in regulation 17(3) .

6.   Noise emitted from certain mobile machinery in off-street areas

Unless an approval is granted by the Director under regulation 26 , a person must not operate any mobile machinery specified as an item in Column 1 of Schedule 2 with an NEP specified in Column 2 of that Schedule corresponding to that item in an off-street area if that mobile machinery emits a noise greater than the corresponding level specified in respect of that mobile machinery in Column 3 or 4, whichever is appropriate, of that Schedule when measured at a distance of 7.5 metres.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

7.   Noise emitted from certain forklift trucks and industrial motor vehicles in off-street areas

Unless an approval is granted by the Director under regulation 26 , a person must not operate a forklift truck or an industrial motor vehicle specified as an item in Column 1 of Schedule 3 with an NEP specified in Column 2 of that Schedule corresponding to that item in an off-street area if that forklift truck or that industrial motor vehicle emits a noise greater than the corresponding level specified in respect of that forklift truck or industrial motor vehicle in Column 3 of that Schedule when measured at a distance of 7.5 metres.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

8.   Noise emitted from motor vessels

(1)  Unless an approval is granted by the Director under regulation 26 , a person must not operate a motor vessel propelled by an engine that is manufactured on or after 1 January 1975 if that engine emits a noise greater than 74dB(A) measured at a distance of 25 metres when operated on water.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  Subregulation (1) does not apply to a motor vessel referred to in regulation 17(4) .

(3)  A measurement of noise taken for the purpose of subregulation (1) is to exclude any noise from a warning device.

9.   Noise emitted from outboard motors

Unless an approval is granted by the Director under regulation 26 , a person must not operate an outboard motor that is fitted to a motor vessel being operated on water if that outboard motor emits a noise greater than 74dB(A) when measured at 25 metres.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

10.   Noise emitted from certain portable apparatus

(1)  Unless an approval is granted by the Director under regulation 26 , a person must not operate any portable apparatus specified as an item in Part 1 of Schedule 4 that emits a noise greater than the corresponding level specified in respect of the portable apparatus in that Part of that Schedule.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  Unless an approval is granted by the Director under regulation 26 , a person must not, within 50 metres of any domestic premises, shop or office, operate any portable apparatus specified as an item in Part 2 of Schedule 4 that emits a noise greater than the corresponding level specified in respect of the portable apparatus in that Part of that Schedule.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(3)  Subregulation (2) does not apply if the portable apparatus referred to in that subregulation is operated with the prior consent of the occupier of the domestic premises, shop or office.

11.   Noise emitted from power lawnmowers

(1)  Unless an approval is granted by the Director under regulation 26 , a person must not operate a power lawnmower that emits a noise greater than the noise level specified in respect of the power lawnmower in Schedule 5 when measured at a distance of 7.5 metres.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  This regulation does not apply to a power lawnmower that is also a motor vehicle.

12.   Noise emitted from chainsaws

Unless an approval is granted by the Director under regulation 26 , a person must not operate a chainsaw, powered by an internal combustion engine, if the chainsaw emits a noise greater than the noise level specified in respect of the chainsaw in Schedule 6 when measured at a distance of 7.5 metres.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

13.   Noise emitted from airconditioners

(1)  Unless an approval is granted by the Director under regulation 26 , a person must not operate an airconditioner on any premises –

(a) from 7.00 a.m. up to 10.00 p.m. if the noise emitted by that airconditioner exceeds –

(i) in the case of that part of domestic premises used for sleeping, a level of 45dB(A); or

(ii) in the case of that part of domestic premises used for recreation or study, a level of 50dB(A); or

(iii) in the case of that part of domestic premises used for work, a level of 52dB(A); or

(b) from 10.00 p.m. up to 7.00 a.m. if the noise emitted by that airconditioner exceeds –

(i) in the case of that part of domestic premises used for sleeping, a level of 40dB(A); or

(ii) in the case of that part of domestic premises used for recreation or study, a level of 45dB(A); or

(iii) in the case of that part of domestic premises used for work, a level of 47dB(A).

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  A measurement of noise emitted by an airconditioner is to be taken –

(a) one metre from the external wall closest to the relevant area of any domestic premises on which the airconditioner is not situated; or

(b) if the distance between the external wall closest to the relevant area of those domestic premises and the property boundary of those premises is less than one metre, at that property boundary.

14.   Hours of use of certain items

(1)  Except for the days and periods specified in Column 2 and 3 of Schedule 7 , a person must not operate any item specified in Column 1 of that Schedule on any domestic premises, or on any site where domestic premises are being constructed, if the noise emitted from the item exceeds 45dB(A) when measured on any other domestic premises.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  Subregulation (1) does not apply to the operation, outside the days and hours specified in Column 2 and 3 of Schedule 7 , of any mobile machinery if a permit has been issued under Part 4 in respect of that mobile machinery.

PART 3 - Operation of motor vehicles, motor vessels and chainsaws

15.   Operation of motor vehicles and motor vessels near domestic premises

Subject to regulations 16 and 17 , a person must not operate a motor vehicle or motor vessel for sport or recreation within 500 metres of domestic premises unless –

(a) the motor vehicle or motor vessel is being operated by, or with the consent of, the occupier of the premises; or

(b) in the case of a motor vehicle, the motor vehicle is being –

(i) operated on a public street; or

(ii) driven directly to or from a public street; or

(iii) driven directly to or from a place that is further than 500 metres from the premises; or

(iv) driven directly to or from a place for cleaning, maintenance, refuelling or repairs; or

(c) in the case of a motor vessel, the motor vessel is –

(i) being driven directly to or from a place that is further than 500 metres from the premises; or

(ii) being driven directly to or from a place for cleaning, maintenance, refuelling, repairs or unloading or loading passengers; or

(iii) not planing; or

(d) a permit has been issued under Part 4 of these regulations in respect of that motor vehicle or motor vessel.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

16.   Operation of motor vehicle or motor vessel at recreational facilities

Regulation 15 does not apply to the operation of a motor vehicle or a motor vessel at a recreational facility –

(a) the conduct of which is not a level 2 activity; and

(b) in respect of which a permit has been issued under Part 4.

17.   Operation of racing events and aquatic events

(1)  Regulation 15 does not apply to a motor vehicle or a motor vessel being used –

(a) at a racing event in an off-street area, the conduct of which is a level 2 activity, or at an aquatic event, the conduct of which is a level 2 activity; and

(b) in accordance with –

(i) an environment protection notice issued under the Act; or

(ii) a permit issued under the Land Use Planning and Approvals Act 1993 .

(2)  Regulation 15 does not apply to a motor vehicle being used at a racing event in an off-street area or to a motor vessel being used at an aquatic event –

(a) the conduct of which is not a level 2 activity; and

(b) in respect of which a permit has been issued under Part 4.

(3)  A person must not operate a motor vehicle at a racing event, for the purpose of competitive racing, speed trials or performance trials in an off-street area, if it emits a noise level greater than 95dB(A), when measured at a distance of 30 metres when driven.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(4)  A person must not operate a motor vessel at an aquatic event, for the purpose of competitive racing, speed trials or performance trials, if it emits a noise level greater than 95dB(A), when measured at a distance of 25 metres when operated on water.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

18.   Operation of chainsaws

(1)  A person must not, within 300 metres of domestic premises, operate a chainsaw powered by an internal combustion engine if the person who is in occupation of the premises at the time the chainsaw is being operated does not own the land on which the chainsaw is being operated.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  Subregulation (1) does not apply if –

(a) a permit has been issued under Part 4 in respect of the operation of the chainsaw; or

(b) the chainsaw is operated by or with the consent of the occupier of the domestic premises.

PART 4 - Permits

19.   Application for permits

(1)  A person may apply to the Director for a permit under regulation 14(2) , regulation 15(d) , regulation 16(b) , regulation 17(2)(b) or regulation 18(2)(a) .

(2)  An application for a permit –

(a) is to be in writing; and

(b) is to be accompanied by the following fee:

(i) a fee of 100 fee units for an application under regulation 15(d) ;

(ii) a fee of 100 fee units for an application under regulation 16(b) ;

(iii) a fee of 200 fee units for an application under regulation 17(2)(b) ; and

(c) is to be lodged with the Director.

20.   Grant or refusal of applications with or without conditions

(1)  Subject to subregulations (2) and (3) , on receipt of an application for a permit, the Director may –

(a) grant the application with or without any conditions that he or she considers appropriate relating to the prevention of environmental harm or environmental nuisance from the emission of noise if he or she is satisfied that –

(i) reasonable noise-reduction measures are to be taken at the place and time at which the person proposes to operate the motor vehicle, motor vessel or mobile machinery; and

(ii) the motor vehicle, motor vessel or mobile machinery is fitted with reasonable noise-reduction equipment which will be employed at the time at which the person proposes to operate the motor vehicle, motor vessel or mobile machinery; or

(b) refuse to grant the application.

(2)  Subregulation (1) does not apply to an application for a permit under regulation 17(2)(b) or regulation 18(2)(a) .

(3)  On receipt of an application for a permit under regulation 17(2)(b) or regulation 18(2)(a) , the Director may –

(a) grant the application with or without any conditions that he or she considers appropriate relating to the prevention of environmental harm or environmental nuisance from the emission of noise; or

(b) refuse to grant the application.

(4)  The Director must, as soon as practicable after considering an application, give the applicant notice of –

(a) the grant of the application; or

(b) the refusal to grant the application and any reasons for the refusal.

(5)  The holder of a permit must comply with any conditions imposed under this Part.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

21.   Variation of conditions

(1)  The Director may –

(a) impose a new condition on a permit; or

(b) vary a condition of a permit; or

(c) revoke a condition of a permit.

(2)  The Director must, as soon as practicable after exercising a power under subregulation (1) , give the holder of the permit notice of –

(a) the imposition, variation or revocation of the condition; and

(b) the reasons for the imposition, variation or revocation.

22.   Issue of permits

(1)  The Director must, as soon as practicable after granting an application by a person for a permit, issue the permit to that person.

(2)  A permit is to specify –

(a) the operation or the activity authorised under the permit; and

(b) the period during which the permit is in force; and

(c) any condition of the permit; and

(d) the person to whom the permit is issued.

23.   Term of permits

A permit remains in force for a period, not exceeding 3 years, as is specified in the permit.

24.   Revocation of permits

(1)  The Director may revoke a permit issued under these regulations if –

(a) the holder of the permit fails to comply with, or contravenes –

(i) a provision of the Act or these regulations; or

(ii) a condition of the permit; or

(b) the permit holder has ceased to carry on the activity specified in the permit; or

(c) the recreational facility, the racing event or any other event or facility specified in the permit is no longer suitable for the purpose for which the permit was issued.

(2)  As soon as practicable after revoking a permit, the Director is to give the permit holder written reasons for the revocation.

PART 5 - Noise Measurement Procedures Manual

25.   Noise Measurement Procedures Manual

(1)  The Director is to prepare and issue a Noise Measurement Procedures Manual to regulate the carrying out of any measurement of noise or any test of a noise source for the purposes of these regulations.

(2)  The manual may include or refer to any code, standard, guideline, rule or other document relating to the measurement of noise that the Director considers appropriate.

(3)  The Director may amend the manual as he or she considers appropriate.

(4)  In subregulation (3), "amend" means –

(a) omit any matter; and

(b) insert any matter; and

(c) omit any matter and substitute any other matter.

(5)  The Director is to notify the issue and any amendment of the manual in the Gazette.

(6)  The Director may require or authorise a measurement of noise or a test of a noise source to be carried out otherwise than in accordance with the manual, for a specific purpose, if the Director considers it appropriate in the circumstances.

PART 6 - Miscellaneous

26.   Approval of emission of certain noises

(1)  The Director may approve, in writing, the emission of certain noises otherwise prohibited in Part 2 of these regulations, if –

(a) the relevant motor vehicle, motor vessel, apparatus or machinery is to be operated at a place specified in the approval; and

(b) no other motor vehicle or motor vessel, or no other apparatus or machinery referred to in Part 2 of these regulations, that complies with these regulations, is available; and

(c) the use of any other motor vehicle or motor vessel, or any other apparatus or machinery referred to in Part 2 of these regulations, that complies with Part 2 of these regulations, is not practicable.

(2)  An approval under subregulation (1) may be subject to any terms and conditions the Director considers appropriate relating to the prevention of environmental harm or environmental nuisance from the emission of noise.

27.   General exclusions

These regulations do not prohibit the operation of any motor vehicle or motor vessel, or any other apparatus or machinery referred to in these regulations, for carrying out work that is required for –

(a) public safety; or

(b) the safety or security of plant and equipment in emergency situations; or

(c) the maintenance of essential services; or

(d) the provision of emergency services by emergency services personnel in emergency situations.

28.   Infringement notices

The Environmental Management and Pollution Control (Infringement Notices) Regulations 1996 apply to offences against these regulations.

29.   Savings for certain permits and approvals

A permit issued or an approval granted under regulation 8A, 8B, 16(3), 17(2) or 20 of the Environment Protection (Noise) Regulations 1977 that provided for certain activities to continue after 1 January 2004 is taken to be a permit issued or an approval granted under these regulations.

SCHEDULE 1 - Noise emitted from certain motor vehicles in off-street areas

Regulation 5

PART 1 - Motor bikes and motor trikes

PART 2 - Car-type vehicles

PART 3 - Positive ignition (petrol or gas fuel) - engined motor vehicles not referred to in Parts 1 and 2

PART 4 - Compression ignition (diesel) - engined motor vehicles not referred to in Parts 1 and 2

SCHEDULE 2 - Noise emitted from certain mobile machinery in off-street areas

Regulation 6

SCHEDULE 3 - Noise emitted from certain forklift trucks and industrial motor vehicles in off-street areas

Regulation 7

SCHEDULE 4 - Noise emitted from certain portable apparatus

Regulation 10

PART 1 - Type of portable apparatus

PART 2 - Type of portable apparatus

SCHEDULE 5 - Noise emitted from power lawnmowers

Regulation 11

SCHEDULE 6 - Noise emitted from chainsaws

Regulation 12

SCHEDULE 7 - Hours of use

Regulation 14

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 21 July 2004

These regulations are administered in the Department of Primary Industries, Water and Environment.

EXPLANATORY NOTE

(This note is not part of the regulation)

(a) replace the Environment Protection (Noise) Regulations 1977 ; and

(b) make provision for regulating the emission of certain noises and in particular for –

(i) the operation of motor vehicles in off-street areas near domestic premises; and

(ii) the operation of motor vessels near domestic premises; and

(iii) the operation of chainsaws near domestic premises; and

(iv) the operation of aquatic events, racing events and recreational facilities; and

(v) the preparation and issue of the Noise Measurement Procedures Manual.