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ENVIRONMENT PROTECTION AMENDMENT REGULATION 2015 (NO 1) (NO 28 OF 2015)
2015
THE
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
ENVIRONMENT
PROTECTION AMENDMENT REGULATION 2015 (No 1)
SL2015-28
EXPLANATORY
STATEMENT
Circulated with the authority of
Simon Corbell
MLA
Minister for the Environment, Climate Change and Water
Environment Protection Amendment Regulation 2015 (No
1)
Outline
• Environment Protection Act means the Environment Protection Act 1997.
• EPA means the Environment Protection Authority appointed under section 11 of the Act.
• amendment regulation means the Environment Protection Amendment Regulation 2015 (No 1) that is the subject of this explanatory statement.
• regulation means the Environment Protection Regulation 2005 made under the Act as existing prior to the making of amendments under the amendment regulation.
The dictionary to the Act defines “pollutant” as meaning
(a) a
gas, liquid or solid; or
(b) dust, fumes, odour or smoke; or
(c) an
organism (whether alive or dead), including a virus and a prion;
or
(d) energy, including heat, noise or radioactivity, or light or other
electromagnetic radiation; or
(e) anything prescribed; or
(f) a
combination of 1 or more of the things described in
paragraphs (a) to
(e);
that, when discharged, emitted, deposited or disturbed, may cause
environmental harm.
“Noise” is a pollutant under paragraph
(d) of the above dictionary definition.
Section 5 of the Act deems a
pollutant indicated in (a) to (e) of the Dictionary definition to cause
environmental harm if the measure of the pollutant entering the environment
exceeds the prescribed measure in the regulation, or the pollutant entering the
environment is prescribed in the regulation.
Section 22(1) of the Act
requires a person to take “the steps that are practicable and reasonable
to prevent or minimise environmental harm or environmental nuisance caused, or
likely to be caused, by an activity conducted by the person”.
The
Act does not apply in relation to noise made by a train, a Commonwealth
jurisdiction aircraft within the meaning of the Air Services Act 1995
(Cth), a person using only his or her body, or an animal, or a motor vehicle
being driven on a road (section 8 of the Act).
Noise is regulated under
Division 3.2 of Part 3 of the regulation. The regulation includes certain noise
standards (s24) for different specified noise zones (s23). Making noise that
exceeds the level set in the noise standard for the relevant noise zone is
deemed to cause environmental harm (refer s5 of the Act and ss24, 25 of the
regulation). It is an offence under s39 of the regulation to make noise that
causes environmental harm.
The regulation provides for exceptions to
section 25 of the regulation and related provisions deeming specified noise
levels to be pollution causing environmental harm. The exceptions are as
follows:
1. Noise is not taken to cause environmental harm in an affected
place if the noise is emitted in the course of protecting life or property
(section 26 of the regulation);
2. Noise is not taken to cause environmental
harm in an affected place if the noise is emitted in the course of preventing,
minimising or remedying another environmental harm (section 27 of the
regulation);
3. Noise is not taken to cause environmental harm in an affected
place if the noise is emitted in the course of conducting an activity for which
an approval is in force under the Act (section 28 of the regulation);
and
4. Noise is not taken to cause environmental harm in an affected place if
it is noise mentioned in schedule 2, table 2.3, column 2 and the conditions
(if any) mentioned in column 3 for the noise are met (section 29 of the
regulation).
Table 2.3 in the regulation provides a list of 21
prescribed situations in which noise regulation is specifically exempted under
section 29, ranging from noise emitted in the course of primary production, to
building work. Conditions may be attached to these situations, such as periods
of time during daylight hours and certain days when noise is permitted.
These include an exemption to the effect that noise emitted in the
course of constructing or maintaining a “major road” is deemed to be
noise that does not exceed the noise standards. “Major road” is
defined in section 2.2 of Part 2.3 of Schedule 2 to the regulation as “an
area identified in the territory plan as being in the transport zone.”
For example, Northbourne Avenue is a major road.
The purpose of the amendment regulation is to make the regulation of noise
from the construction and maintenance of railways, light rail and dedicated bus
ways consistent with the existing regulation of noise from the construction and
maintenance of major roads.
One of the principal objectives of the Act
is to “achieve effective integration of environmental, economic and social
considerations in decision-making processes” (section 3C(1)(d)).
Consistent with this principal objective, section 29 and schedule 2, table 2.3
exempts the construction and maintenance of “major roads” from
relevant noise standards. This existing exemption reflects the public
importance of such infrastructure and the need for its construction and
maintenance to proceed with priority under governance arrangements that can be
tailored to the particular circumstances for the major project with a view to
ensuring that the project can proceed in a timely, appropriate manner. It also
allows for maintence at times when this activity could be practically and safely
undertaken.
The exemption is consistent with the fact that the default
noise standards may not be appropriate or practical to the construction and
maintenance of such major transport infrastructure projects given their
importance to the community; their priority and their operation as major
transport routes, as they are significant to the environmental, economic and
social development of the Territory; as well as the public expense, complexity
and timing of their construction and maintenance. For example, it may be
necessary to permit some construction noise to occur at night contrary to
existing noise standards so as to minimise disruption of general traffic around
the relevant area during the day and also to ensure that the project can be
completed as quickly as possible to ensure minimal disruption overall, timely
completion and reduction of public expense due to delay.
The existing
exemption in the regulation around “major road” does not include
transport infrastructure of like importance including railways, light rail and
dedicated busways. While it is arguable that the construction of these along a
major road might be covered by the regulation, this amendment is to make the
regulation more consistent and clear.
The above existing exemption
should, as a matter of logical consistency, apply to other major transport
infrastructure of similar significance. Specifically the exemption should also
apply to dedicated bus way, railway and light rail. This issue of consistency
also arises from the fact that it is anticipated that all such infrastructure
will be built along major roads and transport corridors in any event. It is
illogical to exempt major road construction but not construction of additional
transport infrastructure along the same route such as light rail.
The
above inconsistency was highlighted with the advent of the Capital Metro Light
Rail Project (the light rail project). In terms of this project it is desirable
for this inconsistency to be addressed before the construction of the light rail
begins in early 2016. The amendment regulation is to rectify this
inconsistency.
For consistency, the amending regulation seeks to ensure
the noise exemptions of section 29 and schedule 2 of the EP Regulation can apply
also to the construction of all likely forms of major transport infrastructure
such as railways, light rail and dedicated bus ways.
The amending
regulation is consistent with and contributes to the ACT Government’s
commitment to expedite the construction of the major transport infrastructure,
including the light rail project.
The amendment regulation addresses the
inconsistency noted above by amending Schedule 2, Part 2.3, Item 16 of the
regulation to extend the definition to include not just major roads, but also a
dedicated bus way, a railway, or a light rail.
For example, the
amendment regulation will in particular allow the construction of the light rail
project to proceed without the requirement to comply with the existing noise
standards and associated prescribed noise levels and time periods under the Act
and regulation. It will also allow for light rail to be maintained without
having to comply with these standards.
This does not mean that the light
rail project (or other major transport corridor infrastructure projects) will be
able to proceed without any restrictions. There are other mechanisms for
regulating noise including the potential for noise restrictions to be included
in the conditions of any development approval granted for the construction and
maintenance of the light rail and included in relevant procurement contracts.
Proposed noise emission standards and governance framework for the light rail,
including management of noise from its operation, are canvassed in the draft
Environmental Impact Statement Capital Metro Light Rail – Stage 1
(released for public comment on 20 June 2015).
In addition, it should be
noted that section 22(1) of the Act will continue to apply notwithstanding the
proposed regulation. Section 22(1) requires a person to “take the steps
that are practicable and reasonable to prevent or minimise environmental harm or
environmental nuisance caused or likely to be caused, by an activity conducted
by that person”. It is suggested that compliance with relevant conditions
in the development approval for noise emissions would potentially be an
indication of compliance with this duty subject to assessment, whereas failure
to comply could result in a breach of this duty. The existing ability of the
EPA to respond to such a notification with compliance measures as required will
also remain.
Human rights analysis
The Amendment
Regulation has been reviewed in relation to the Human Rights Act 2004.
In a broad sense, the potential human rights impacts of the amendment
regulation, if any, are limited because the amendment regulation does not in
itself diminish any rights of review or create any new offences or liabilities.
Conceivably the amendment regulation might be considered to enliven the
Human Right 11 Protection of the family and children and the Human Right 12
Privacy and reputation to the extent that the amendment regulation might result
in noise levels in excess of the existing standards in the regulation with
impacts on family or life at home.
It is considered that to the extent
that the measures in the amendment regulation might be said to impact on the
abovementioned human rights, the measures are nonetheless proportionate and
appropriate taking into account the factors noted in section 28 of the Human
Rights Act. Section 28 of the Human Rights Act provides as
follows:
28 Human rights may be limited
(1) Human rights may
be subject only to reasonable limits set by laws that can be demonstrably
justified in a free and democratic society.
(2) In deciding whether a limit
is reasonable, all relevant factors must be considered, including the
following:
(a) the nature of the right affected;
(b) the importance of the
purpose of the limitation;
(c) the nature and extent of the
limitation;
(d) the relationship between the limitation and its
purpose;
(e) any less restrictive means reasonably available to achieve the
purpose the limitation seeks to achieve.
Specifically, the measures in
the amendment regulation are the only practical means for achieving the
significant objective of establishing a more consistent and appropriate
framework for the regulation of noise from the construction of transport
corridors as noted above.
The impact of the measures are limited
because the amendment regulation does not mean an absence of oversight of noise
levels but rather creates the possibility of alternative, more flexible forms of
oversight through, for example, development approval conditions under the
Planning and Development Act. In addition, as noted above, there will be
continued general oversight by the EPA. For example, the EPA will continue to
be able to issue a stop work notice if the EPA considers that noise levels are
such that they constitute environmental harm notwithstanding that the specific
noise standards do not apply. People will continue to be able to notify the EPA
of concerns in this regard.
The impacts of the measures are acceptable
given the benefits of the amendment regulation in establishing a more consistent
and appropriate framework for the regulation of noise from the construction of
major public infrastructure in transport corridors as noted above.
Clause 1 – Name of regulation
This clause names
the amendment regulation as the Environment Protection Amendment Regulation
2015 (No 1).
Clause 2 – Commencement
This
clause provides that the amendment regulation commences on the day after its
notification day.
Clause 3 – Legislation
amended
This clause states that the amendment regulation amends
the Environment Protection Regulation 2005.
Clause 4
– Schedule 2, section 2.2 (1), new definition of light
rail
This clause inserts a definition of “light rail” for
the purposes of section 2.2 of Schedule 2 of the regulation. The new definition
is required because of the use of the term “light rail” because of
the amendment to item 16, column 2, Part 2.3, Schedule 2 in clause 5. The new
definition includes a number of specific features such as “supports for
tracks and catenaries” to make it immediately clear that these are part of
the term “light rail”.
Clause 5 – Schedule
2, Part 2.3, item 16, column 2
This clause inserts new words into
Schedule 2, Part 2.3, item 16, column 2. The effect of the new wording is to
extend the current exemption from the existing noise standards for the
construction and maintenance of “major roads” so that it also
includes dedicated bus ways, railways and light rail. This means that noise in
excess of the relevant standards from the construction or maintenance of
dedicated bus ways, railways and light rail will not automatically be deemed to
be noise causing environmental harm for the purposes of section 5 of the Act and
sections 24, 25 of the regulation.
Clause 6 – Dictionary, new
definition of light rail
This clause inserts a new definition of
“light rail” into the dictionary to the regulation consistent with
clause 4.