Fitzroy and surrounding parts of Collingwood are heavily affected by music sounds coming from pubs and nightclubs in the area. This is a recent phenomenon in the last 15 years or so, due to growth of Brunswick, Smith, Gertrude and Johnston Streets as foci for bars and nightclubs. However only a small number of these are Live Music Venues.

Prior to these recent years, traditional corner hotels drew patrons who walked from their homes to 'the local pub'. Unfortunately many of the former 'locals' now market themselves to a city wide clientele. Some operate as discotheques. Both live music venues and discotheques can create problems of noise. 

Fitzroy is Melbourne's first suburb, developed mainly in the late 19th century according to 19th century norms. It is one of the most densely inhabited areas in Australia. Different land uses are side by side - living, business, industrial areas. The latter are slowly being converted to office or residential functions as industry and blue collar jobs are moving to bigger, more flexible sites in distant suburbs. 

Until the late sixties almost all licensed premises closed at 6pm, then until the mid eighties 10 pm closing was usual. A huge number of licensed premises have set up in Fitzroy since the mid 80s. The old buildings that could cope with their former functions as quiet food and drink / accommodation premises have been changed, in most cases well after residents were in place around them.

Characteristics of venues that may cause problems.
Fitzroy Residents' Association has become involved from time to time in disputes with a small number of licensed premises, but these are the exception rather than the rule. In our experience, premises where there is a propensity for problems can be characterised as likely to have some or all of the following characteristics: 
 

1. late trading to 1 am or later
2. marketing to large attendances
3. providing live music or discotheque entertainment
4. ineffective soundproofing
5. poor patron management capacity
6. management reluctance to engage with and address residents' concerns 

FRA believes the Task Force has an opportunity to look at the problems from live music venues that have caused friction, and to try to find a balanced package of solutions. Rogue operators in this sector give other live music venues a bad name. We recognise that most operators take their responsibility seriously. Those who are not responsible should not be able to hide behind false arguments that they are promoting musical culture, etc.

FRA does not aim to close down live music venues which treat their neighbours appropriately. We believe that with proper care and consideration by live music venue operators and residents the benefits of live music venues can be maintained. We recognise the valid role that musicians play in keeping our culture vibrant.

We do not however believe that discotheques, which simply play recorded music, should warrant any special treatment based on 'culture' arguments. FRA urges the Task Force to be solely concerned with Live Music venues, not with accommodating discotheques.

FRA maintains musician's livelihoods are not the real issue. The argument that because they're musicians they should be allowed to be a public nuisance is like defending graffiti of public property in the interests of art.

The livelihood of live musicians is not in danger- it’s only poorly designed and managed venues that are at issue. If there is any impact it is on bands with over-amplification in venues with bad acoustics. In Brunswick St there are around six venues capable of handling crowds of over 75. The acoustic management has been an issue at places like Virgona's and the Evelyn but both improved after air locked doors were installed. Neighbourhood amenity and live music can co-exist with the proper management

Hierarchy of Risk Management
FRA urges the Task Force to adopt a hierarchy-of-risk-control approach. The risk management hierarchy for live music emissions from venues should be:

1. Regulation of sound at source - eg by fitting decibel limiters.
2. Control in the transmission path - eg by fitting soundproofing to venues.
3. Protection at receiver sites - eg by aiding residents to fit soundproofing should they so wish. 

This should be available for new and existing dwellings.
It would be foolish, we believe, to allow venues to emit noise willy-nilly, and then have other parties spend large sums to try to prevent it entering resident's homes or other businesses! Residential hotels could be just as severely impacted.

Important issues to be faced by the Task Force in the debate over live music venues near residential property include: 

• the current regulation regime, characterised by divided and overlapping responsibilities of a range of state and local government bodies
• The impacts that music emitted by some venues has on those living in some nearby residential properties, which in some cases is so pronounced as to regularly disturb sleep and consequent health effects. 
• How to find a package of policy responses which will maintain cultural activity of live music while minimising the negative effects. 
• Not all live music causes problems - it is overly amplified loud live music that is the issue. 
• A very cheap and easy solution to this problem exists - turn the master volume control down two or three notches on the band sound systems! 
• This is about the exercise of artistic control by bands and venue management such that the performance is suited to the environment where it is performed - in some locations a band can go flat out, in the inner city, we believe, bands need to modify their approach. We congratulate the Empress Hotel for recently taking this route in the absence of effective soundproofing.
• Residents have been slagged in the media in the lead up to the Task Force being established as “complainers” and “whingers”, yuppies and “Johnny come lately”. In fact the greatest amount of whingeing seems to be coming from the music industry, instead of applying themselves to workable solutions. We all share this wonderful place called Fitzroy – let’s have some common care and concern for it!

Addressing the terms of reference:

• Effectiveness of current legislation

In 1896 the Supreme Court of the United States, in the case of Camfield v. United States (1896) 167 US 518, at pp 522, 523 (42 Law Ed 260, at p 261) , used words equally applicable in Australia. "Ever since Aldred's Case(1610) 9 Coke 57b (77 ER 816), it has been the settled law, both of this country and of England, that a man has no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapours, the jarring of machinery or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable or even uncomfortable to its tenants. No person maintaining such a nuisance can shelter himself behind the sanctity of private property."
 

Statute Law in Victoria is divided
Current legislation is a problem in that no one authority has responsibility for the whole of the facets of live music emissions and residential impacts. Unless a resident has some expertise in the area they will be unsure where to turn to get a clear statement of rights and responsibilities. 

FRA has developed a table to help residents work out which authority to approach about these matters. 
 
 
 
 

Even within Police or Council there have been inconsistent approaches. Council's Planning Permit conditions have, in the past, not meshed with Council's functions as enforcer of Amenity standards and the requirements of the Planning Scheme not to allow noise to be emitted. Thus Council has not taken up the best opportunity to minimise potential sources of conflict – at the time an initial planning permit is issued. FRA has spent a great deal of time trying to bring different parts of Council together to produce a unified approach to these issues. We believe we have had a considerable degree of success relating to new planning permits. 

Existing permits are another matter. FRA calls on the Task Force to consider introducing an ability to review a planning permit where there is a proposed change in the nature or style of the business.

The divided authority also makes consistency on resolution of issues when they arise more difficult. There is in my view a need to overhaul the split responsibilities and develop a streamlined policy mechanism. 

EPA Regulations
In FRA's experience the SEPP N2 entertainment noise standard is difficult, expensive and often inconclusive. The dBA scale used de-emphasises low bass frequencies (see attached extract from World Health Organisation). Low bass frequencies seem to penetrate more, causing whole buildings to apparently vibrate. 

It is not cheap to get a sound engineer to attend premises in the middle of the night with thousands of dollars of sensitive equipment, which is what N2 requires.

A simpler standard would make it easier and cheaper for venues and residents to test and verify sound levels. The most appropriate standard FRA believes is that an officer of the Responsible Authority (Council) should not be able to hear emitted music from a live music venue in a habitable room of a resident's dwelling. 

Examples of how noise policies have been working (including sound proofing)
FRA includes the following example as just one indication of problems experienced. 

AN EXAMPLE OF A PROBLEM VENUE WITH LIVE MUSIC – A NOISE PROBLEM: 
The Stage, 1st floor, 222 (or 224) Smith St, Fitzroy. 

Whilst the venue fronts Smith St and very little can be heard from Smith St, the side of the venue has a very long bank of windows along Moor St. These windows are opposite and alongside residences. The windows are not sound proofed and are often open. The live band music can always be heard even with the windows shut and even heard within my house which is around the corner in Gore St. The music is generally heard from about 10pm – 2am and mainly on a Fri, Sat and/or Sun. Sometimes there are rehearsals at other times. I believe their liquor license ends at 1.30am. 

I have made frequent complaints about the noise level over the last 5 years via the police, the council and directly to the person in charge on the night, the latter of whom has lately passed on veiled [unhelpful comments] to myself. 

Not surprisingly, nothing has improved and ... responsibility for a resolution lies in too many hands/organisations, ie with no-one. Certainly the police often have other more pressing matters to deal with as a priority. The noise pollution arm of the EPA are not effective in my opinion. My experience is that they never come when the problem is occurring or come with a decibel measurer, which if it does not reach a certain level, they claim it is within the guidelines. Never mind if one cannot study or sleep because of the noise. 

SOLUTIONS: 
1. The idea of one body to deal with issues has great merit 
2. It would be ideal to be able to resolve a noise problem at the time it is occurring and not have to spend a sleepless night or 2 or 3 before someone can be contacted for assistance 
3. Sound-proofing should be mandatory 
4. Windows should not be open and should also be sound-proofed. 
5. This means that venues would necessarily require air-conditioning 
6. Live music venues should provide parking for patrons and not rely on patrons finding a park around residences, using residence parks. 
7. Mediation sounds a good idea, but I would be loath to show my face, let alone provide my name and address to an owner/manager of a venue after the experience described above. If mediation was an option, perhaps it would be better that it was once removed from any particular complainant. 
8. Zoning resolutions are always tricky in the inner city. The above example I gave shows this – the venue fronts Smith St, a commercial zone, but the problem emanates from the side of the building and the noise carries to residential areas. 

(The resident concerned asked that his/her name be kept confidential from a public submission, but it can be made available to the Task Force in confidence.) There are many similar instances.

Examples of how the live music industry is affected by current policies and restrictions
FRA will give a resident perspective on this Term of Reference. 

The lack of clarity regarding regulation must affect live music venues as well as residents. A clearer regime of rights and responsibilities will benefit both 'sides' of the debate. Access to mediation would benefit both.

Live music venues are lumped in with discotheques currently. Both can cause emission problems, but FRA does not believe discotheques warrant any assistance from state government, eg to install soundproofing (see below). FRA believes discotheques do not offer any cultural reasons for laxity in enforcement of music emission standards.

Some approaches to dealing with problems 
Mediation of existing problems
The parties should have access to a mediation service with expertise in the area. This could be a function of local council, or a development of the currently available mediation service offered by the state government. 

There must be a clear hierarchy of steps to take to allow both sides to discuss and resolve their issues. These steps might be:

• Where live music can be heard emitting from a venue, initial contact to be made by affected resident/s with the manager of the venue
• If a resolution cannot be reached within a reasonable time, either party may contact the mediation service.
• The mediation service will seek advice from Council and other relevant authorities
• the mediator will try to bring about a resolution by agreement 
• failing resolution, the mediator will make a recommendation as to how the matter be resolved.
• Council and other authorities will take the mediator’s recommendations into account in any further dealings with the matter, if they should arise.

Better Planning zones, etc to minimise new problems 
1. Planning Zones and terms
It is appropriate that Councils set guidelines for live music venues in their area, and that they do so in a manner likely to reduce amenity conflicts, wherever possible. They should not introduce new uses where conflicts are foreseeable.

FRA's view is that the current grab bag term "place of assembly" is too broad to allow proper planning to be carried out. It includes functions as diverse as a church and a nightclub.

2. The First arrival argument is being miscast as one that would favour venues.
The high turnover of licensed premises mean most live music venue operators have been in local business for five years or so (e.g. Virgonas, Bar Open). Even the old pubs can't claim pre-existing-long-term usage as late night music venues as they were closed from 6pm into the 60s and then 10pm etc into the late 70s. The advent of 1am and 3am trading with music is a phenomenon of the 90s. Most (and the word is intended to mean quantifiably more than half) of Fitzroy residents have been in Fitzroy for more than 5 years and most venue operators have been there less than five years.

First user rights proposals have been suggested to stop new residential development encroaching on existing live music venues. But first user rights, if it were possible to introduce them, would operate both ways, and may have unintended consequences of limiting new live music venues from being set up by:

• limiting rights of residents in new dwellings near existing live music venues and, conversely, 
• limiting rights of new venues near existing dwellings. 

Thus they would tend to prevent new live music venues being established, which would limit jobs for musicians and live music culture opportunities – a perverse outcome. 

First user rights are a furphy in FRA’s view. We need to deal with the substantive issues of live music emissions and how to control them. 

First user rights if only applied to new dwellings would not address the situation where existing dwellings are affected by live music emissions from existing venues. In most cases FRA maintains residents were there first anyway – not one of these venues were operating in current form 20 years ago.

Reviewable planning permits needed. 
At present a planning permit is granted in respect of premises, on the basis of the material in support of the application. FRA has found problems can arise later as the permit remains with the premises despite subsequent changes in ownership or change in style of business. 

This leads to situations where a permit has been granted on the basis of certain information provided to the responsible authority, but the authority having no ability to review the permit even when substantial change is proposed in the way the business operates.
An example will illustrate what we mean:

Café Virgona’s (231 Brunswick St) gained a 5am planning permit / license in the late 90s. The argument put forward to the authorities was that it aimed to cater to “taxi drivers” etc who finished work late, by providing meals for them. The documents were issued with prohibitions against allowing dancing, a limit on numbers and requiring meals to be provided. 

Within a few months the style of the business had been changed to a nightclub. It was prosecuted for not providing meals and having too many patrons on site. Residents nearby endured many interruptions to sleep from directly emitted music and noise of patrons, often drunk, noisily leaving the premises. 
There was apparently no capacity of Council to review the permit. Police Licensing squad were only concerned that security cameras be installed. 

A planning permit should be reviewable when a change of style or type of business is contemplated by an owner of premises where a planning permit is in force for a different type or style of business.

Sound proofing of live music venues and / or dwellings 
Why not invest in Double Glazing / sound proofing
The argument that residents should invest in noise-abatement ignores that it is in the order of a 100 times cheaper for the venues to have proper acoustic management (i.e. 20 venues in Yarra rather than 2000 households do the noise-proofing). Also its 100 times more appropriate for venues to do the investment given they produce the emitted noise as part of a commercial venture. 

The state government has an important role in the promotion of a vibrant live music industry through its Arts Policy. This includes education and industry assistance. The state government could assist with outlay on soundproofing which may be difficult for small businesses to meet. There is a role for government to set up a category of funding for venue soundproofing where live music is played (but only where live music is played). 

FRA is not opposed to reviewing and improving the standards of acoustic isolation in building codes for all new dwellings. This is necessary but is not sufficient to ensure minimisation of effects on residents of live music emissions. Many existing dwellings are affected by live music emissions, and it is wrong to say those living in existing dwellings should be ignored or have lesser rights. Once sound has escaped it is more difficult and expensive to control. 

Costs of soundproofing live music venues are business expenses and therefore are either (1) tax deductible costs by a lessee of premises or (ii) depreciable capital costs by a venue landlord. As such, these costs are already subsidised by the taxpayer. 

The above approach is also consistent with the obligations contained in both the EPA legislation and in current provisions of every liquor license to conduct premises in a manner which does not unreasonably impact on the amenity of the area.

 Warning buyers of noise issues
FRA is opposed to this option, believing it to be unworkable and inequitable. The music industry has not shown a need for such a scheme and the hierarchy of control approach would eliminate need for it. They have relied on one or two anecdotal alleged incidents. Its outcome would be to see low income purchasers forced to buy noise degraded properties, or low income tenants being forced to live in them.

As an alternative, FRA proposes that potential buyers of licensed premises be advised, prior to purchase, that residents live nearby and that any emission of unreasonable sound from the licensed premises will result in immediate loss of planning permit and license. (Incidentally, this would have the beneficial effect of making venue landlords take an interest in how the premises are run by their tenants.) Such a scheme would also be a major intrusion on the rights of property owners which could devalue properties severely near rogue operated live music venues. 

A planning Permit and a liquor licence are ‘public goods’ granted by the state to private users on certain conditions. The private users must use the goods to the benefit of the community at large, not just for personal gain.
 

In conclusion
The real solutions in FRA's view
Continue EPA policy of no nearby resident being able to hear any emitted live music in a habitable room after 11pm.
Continued enforcement by local councils and EPA.
Better design of venues.
Better management of amplification by bands.
Rejection of the warning proposal and pre-existing nuisance positions.
A single point of entry for resolution of problems via mediation.
- Streamlining of the divided legislative environment
Review of the use of the dBA scale as to whether it appropriately measures the most intrusive bass frequencies. 

Attached is the following:

Attachment 1. Extract from City of New York Noise Ordinance re commercial music. New York is a city where venues and residents exist side by side. It has imposed rigorous sound attenuation standards on commercial music premises. 

Attachment 2. Graph indicating the filtering applied to low frequencies (under 500 Hz) in the dBA standard. These low frequencies are very intrusive – ‘they make the whole building vibrate’ - and should be measured in relation to live music venues. 
 

Fitzroy Residents’ Association
7/8/03