Note: This is a précis only. Consult the full article for a more full analysis and citations.
Email: Scott Hindle
Introduction
It’s been said that few things divide a neighbourhood like noise. The issue of sensitive users comes up frequently in planning for communities, new and old, and how proposed uses will interact. But the combination of regulations and competing interests and policies can lead to well-intentioned but at times ill-fated outcomes.
In both New South Wales and Ontario, strict guidelines have been crafted in order to standardize the provincial and municipal responses to conflicts that inevitably arise.
NSW Regulations
The Protection of the Environment Operations Act is the primary legislation responsible for regulating noise in NSW. There are, however, a number of agencies responsible for the day-to-day oversight of noise pollution issues – many with overlapping mandates.
The Environment Protection Authority is the primary oversight body and is tasked with overseeing noise pollution from scheduled activities, rail and construction of freeways. It is also responsible for regulation of the emission of noise from premises, in public places, noise labels, noise barriers and control equipment, and inspection for noise emissions. Roads and Maritime Services and local councils are responsible for noise from general roadway traffic. Meanwhile NSW Maritime is responsible for noise control of maritime vessels. The Liquor Act allows police, local councils and the Director of Liquor and Gaming to enforce noise complaints against licensed venues.
The Commonwealth is responsible for aviation noise and oversight. The Strata Schemes Management Act requires every strata scheme to have bylaws regulating noise similar to the Act’s model by-law. The Companion Animals Act has provisions regulating nuisance dog and cat owners. There are no standards for the protection of workers from noise produced in work environments – noise is only addressed as community noise.
The Environmental Planning and Assessment Act and the Local Government Act empower local governments to regulate public nuisances (including noise) and act to abate them.
Source Guidelines
NSW has prepared a number of noise guidelines that outline how various noise issues are to be measured and addressed.
The Noise Guide for Local Government is aimed at planners and influencing their planning decision-making in order to minimize or eliminate noise issues. It is advisory in nature only, however, and is not binding.
NSW periodically issues State Environmental Planning Policies that deal with matters of State or regional planning significance. For instance, the SEPP for infrastructure contains policies to encourage high-density residential development near state infrastructure such as railway stations while recognizing the potential conflicts with regard to the high levels of noise and vibration from such infrastructure. The Rail Infrastructure Noise Guideline and the Development Near Rail Corridors and Busy Roads – Interim Guideline also address this issue. Feasible and reasonable mitigation is required to be provided near these facilities.
Ontario Regulations
Ontario Regulation 381/15 regulates noise within buildings and for exposure to workers. For federally regulated industries, there are also protections under the Canada Labour Code and the Canada Occupational Safety and Health Regulations.
The Highway Traffic Act s. 75 prevents excessive noise or sounds being discharged from motor vehicles. Special provisions have been implemented for the testing of emissions from renewable energy projects, with the intention of encouraging their construction. The Licences to Sell Liquor Regulation to Ontario’s Liquor Licence Act, at s. 46 prohibits liquor licence holders from disturbing nearby residents. The federal government is responsible for aviation oversight and noise controls, managed by Transport Canada and NAV CANADA. Recent changes to the Condominium Act have introduced noise restrictions precluding activities from being disruptive to other neighbours. The Environmental Protection Act is, however, the primary means of control of noise pollution in the province.
In August 2013 the province of Ontario updated its noise guidelines to the current NPC-300 publication that is now in force. These govern predictable worst-case noise emissions that may leave a property and have the possibility of affecting neighbours.
Land Use Compatibility
When confronted with an application for development, land use planning authorities must determine the compatibility of nearby land uses. “A residential land use is considered a sensitive land use and if it is located in close proximity to an existing industrial operation it can pose a significant challenge to both the ability of the industry to conduct its business efficiently and for the residential user to enjoy his/her home.”
The Ministry of the Environment has also published the D-series guidelines to inform decision-making about land use compatibility. These are subject to the requirements of NPC-300. NPC-300 uses a class system to determine the expected sensitivity of properties in a given area of study.
Section 129 of the Municipal Act permits municipalities to prohibit or regulate noise and other emissions. Municipalities may however allow emissions if a permit has been issued, subject to issuing conditions. Municipalities may also, at their discretion, allow Class 4 developments subject to procedures that they can determine.
Most major municipalities in Ontario have instituted local noise by-laws that regulate day-to-day activities with the aim of avoiding conflict between residents and activities such as construction or special events or the use of fans, air conditioners or motor vehicles.
Comparison of NSW and Ontario Approaches
Guidelines in NSW are not binding on local governments and are instead treated as being advisory in nature. In Ontario, by contrast the guidelines are treated as mandatory with few exemptions allowed. This flexible approach in NSW, including the implementation of only mitigation measures that are feasible and reasonable allows for outcomes that better reflect the day-to-day realities of a location.
The reasonableness approach to NSW law is more supportive of collaborative approaches to solutions and of mixed-uses located in close proximity. Over time, it also appears to have supported a culture of residents expecting certain levels of disturbance in areas and acting accordingly. This appears to be less so the case in Ontario. In both NSW and Ontario the majority of instances of noise pollution regulations for land development have little to no impact on planning operations and outcomes. In more difficult situations however the approaches of NSW and Ontario diverge.
Scott Hindle, BES, MCIP, RPP, JD (2017), is an urban planner and a law student at the University of Victoria. He will begin articling in summer 2017 with Davies Howe Partners LLP in Toronto.