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Melbourne has a long established and highly regarded live music scene, strengthening its reputation as Australia’s leading city for live music. Live music makes a significant contribution to the state’s culture and economy, drawing visitors from near and far and providing vital opportunities for emerging and established musicians.
Housing needs and settlement trends, particularly in inner urban areas, are increasing the level of residential development in mixed use environments. While this creates more vibrant places, proximity between residential and entertainment uses can sometimes cause conflict because of live music noise.
Planning seeks to achieve a balance between supporting live music and protecting residents from unreasonable live music noise.
What is live music?
Clause 45.13 (Live Music Overlay) and clause 53.06 (Live music entertainment venues) define a ‘live music entertainment venue’ as:
a food and drink premises, nightclub, function centre or residential hotel that includes live music entertainment
a rehearsal studio
any other venue used for the performance of music and specified in a schedule to these clauses, subject to any specified condition or limitation.
Note: Refer to the table of clause 73.03 for uses included within the above listed land use terms.
These provisions of the Victoria Planning Provisions include requirements that seek to ensure noise sensitive residential uses are satisfactorily protected from unreasonable live music noise from live music entertainment venues.
Clause 45.13 and clause 53.06 also define a ‘noise sensitive residential use’ as community care accommodation, dependent person’s unit, dwelling, residential aged care facility, residential village, retirement village or rooming house.
The agent of change principle
In planning, the agent of change principle assigns the responsibility for live music noise attenuation measures to the ‘agent of change’ – a new use or development that is introduced into an existing environment.
In practical terms, this means that if a new or an existing live music entertainment venue seeks to establish or expand, they will be responsible for attenuating any live music noise effects that are caused by that change on nearby residential properties.
Similarly, a new noise sensitive residential use close to an existing live music venue will be responsible for noise attenuation of its building to protect future residents from the live music entertainment venue.
The ‘agent of change’ principle is applied in clause 45.13 and clause 53.06 to manage the relationship between live music entertainment venues and noise sensitive residential uses.
This does not mean however that any other person living or working in an area is free of any responsibility for live music noise management.
The planning framework for supporting the land use compatibility of live music with noise sensitive uses comprises of:
clause 11.04-2S (Live music) and clause 13.05-1S (Noise management) in the Planning Policy Framework
clause 45.13 (Live Music Overlay)
clause 53.06 (Live music entertainment venues).
Planning Policy Framework
Clause 45.13 (Live Music Overlay)
What is the purpose of the live music overlay?
The overlay is a tool to enable a planning authority to:
identify existing live music entertainment venues and precincts (including clusters of venues) of social, economic and cultural significance
identify areas where live music entertainment venues are encouraged
ensure that new noise sensitive residential uses are protected from unreasonable noise and do not compromise the operation of existing and future live music entertainment venues.
How does the live music overlay operate?
A new noise sensitive residential use located anywhere in the overlay will need to meet the requirements of clause 45.13 and its schedule where:
a proposed use and/or development requires a permit under a zone, or
the schedule to the overlay specifies a permit requirement for such a use.
The overlay does not apply to:
the construction of a building or the construction or carrying out of works associated with an existing dwelling
the construction of a building or the construction or carrying out of works associated with an existing small second dwelling.
Further detail explaining the operation of the Live Music Overlay is included in Figure 1.
A schedule to the overlay can include a short statement about the identified live music entertainment venue or precinct. This may include a description of the cultural, social and/or economic significance of the venue or precinct. The schedule may also include:
additional venues used for the performance of live music that are not automatically included with the meaning of live music entertainment venue, as well any condition or limitation applied to the venue
additional requirements to be met, including requirements to protect noise sensitive residential uses from future live music entertainment venues
additional application requirements
additional decision guidelines
transitional provisions.
NOTE:
The requirements of clause 45.13 (Live Music Overlay) do not apply to live music entertainment venues.
Live music entertainment venues may still have obligations to adopt live music noise attenuation measures under clause 53.06 and outside the planning system in accordance with the EPA Noise Requirements.
Clause 53.06 (Live music entertainment venues)
Clause 53.06 applies to a planning permit application for:
a live music entertainment venue or
a new noise sensitive residential use within 50 metres of an existing live music entertainment venue that is not in the Live Music Overlay (unless specified otherwise in the schedule).
The schedule to clause 53.06 can be used to specify other land or live music entertainment venues to which the clause applies. This may include venues used for the performance of live music that are not automatically included with the meaning of live music entertainment venue, as well any condition or limitation applied to the venue.
This clause does not apply to:
the construction of a building or the construction or carrying out of works associated with an existing dwelling
the construction of a building or the construction or carrying out of works associated with an existing small second dwelling
a noise sensitive residential use that is on land exempted in the schedule to clause 53.06. This may be necessary where alternative noise control requirements are already in place for a noise sensitive residential use through the planning scheme or the EPA Noise Requirements
an application for a noise sensitive residential use to which the Live Music Overlay applies.
Further detail explaining the operation of clause 53.06 is included in figures 1 and 2.
Figure 1: Operation of the planning scheme for noise sensitive residential uses
Figure 2: Operation of the planning scheme for live music entertainment venues
Applying the Live Music overlay
Council’s strategic work will form the basis for the application of the Live Music Overlay.
Council may decide to apply the overlay to land that is identified as having social, economic or cultural significance associated with live music and/or where council has undertaken strategic work that identifies a location as one where live music is encouraged.
The overlay can apply to:
an individually significant live music entertainment venue and surrounding land (Figure 3)
a live music precinct (E.g., a cluster of venues) and surrounding land (Figure 4)
a collection of scattered live music entertainment venues, the land in between the venues and any additional surrounding land (Figure 5).
Figure 3: An individually significant live music entertainment venue
Figure 4: A cluster of venues
Figure 5: A collection of scattered live music entertainment venues
The land in a Live Music Overlay which surrounds an existing live music entertainment venue is where both noise sensitive residential uses are permissible and live music entertainment venues may be encouraged. The extent and purpose of the surrounding land will be informed by council’s strategic work. In deciding the extent, council should be aware that an application for a new noise sensitive residential use to which the overlay applies will need to meet the live music noise attenuation requirements specified in the overlay irrespective of whether it is within, at or beyond 50 metres of a live music entertainment venue.
Strategic justification
The strategic evidence underpinning the application of the Live Music Overlay should:
include a survey or audit that identifies existing live music entertainment venues and shows the location of each venue on a map
describe the social, economic and/or cultural significance of a venue, cluster of venues or precinct and how the application of the overlay will protect and support this significance
describe the methodology for determining the boundary of the overlay
justify the extent of the boundary of the overlay, including with reference to any acoustic analysis that has been undertaken
Strategic justification is also required where a council seeks to include local requirements in a schedule to the Live Music Overlay. All additional requirements must respond to the existing or intended social, economic or cultural significance of the land.
Schedule requirements:
Permit requirements for new noise sensitive residential uses.
Note: The requirements of the overlay do not apply to existing dwellings or existing small second dwelling, including any permit requirement that may be included in a schedule to the overlay.
Strategic justification considerations:
The benefit of assessing a noise sensitive residential use against the purpose of the overlay and schedule.
The proximity of the land to any existing or anticipated live music entertainment venues.
The anticipated development typology in the location.
The type of live music noise emitted by current and anticipated live music entertainment venues.
The cost burden of noise attenuation requirements that will be imposed on the noise sensitive residential use.
Schedule requirements:
Any additional venue used for the performance of live music that does not automatically fall within the meaning of ‘live music entertainment venue’, as well as any condition or limitation applied to the venue.
Strategic justification considerations
The frequency of which the venue facilitates live music.
The type of activities being carried out on the land.
Schedule requirements:
Additional requirements to be met.
Note: Any additional requirements to be met must be in relation to managing live music noise to protect noise sensitive residential uses.
Strategic justification considerations:
The need for the proposed additional live music noise attenuation requirements beyond the default requirements to benefit the social, economic and cultural significance of the land.
The type of additional live music noise attenuation requirements. This could relate to:
acoustic glazing, wall, ceiling and roof construction
locating noise-sensitive rooms away from significance live music noise exposure
dwelling orientation
setbacks from significant live music noise exposure
specifying noise limits.
The cost burden of additional live music noise attenuation requirements that will be imposed on noise sensitive residential uses.
Whether the additional requirements are proportionate to the intended outcome.
Schedule requirements:
Additional application requirements.
Strategic justification considerations:
Whether any additional information is required to support the assessment of the application.
Schedule requirements:
Transitional provisions
Strategic justification considerations:
Whether transitional arrangements should be provided for existing applications or permits.
Assessment against the live music provisions
Information to be submitted with an application
A planning permit application must be accompanied by the information required in clause 45.13-4 and clause 53.06-4, and the associated schedule as considered relevant to the evaluation of the application. The responsible authority may waive or reduce any application requirements if it is considered irrelevant.
Clause 53.06
Requirement to be met:
A live music entertainment venue must be designed, constructed and managed to comply with the applicable live music noise limits specified in the EPA Noise Requirements to protect a noise sensitive residential use within 50 metres of the venue.
Note:
Clause 53.06 only imposes requirements to protect noise sensitive residential uses from live music noise emitted from live music entertainment venues within 50 metres (or as modified under the schedule to clause 53.06). However, live music entertainment venues may have additional requirements imposed by the EPA Noise Requirements.
Clause 45.13 or 53.06
Requirement to be met:
A noise sensitive residential use must: be designed and constructed to include live music noise attenuation measures that will reduce noise levels from any indoor live music entertainment venue (including an outdoor space of a substantially indoor venue) to below the noise limits specified in the EPA Noise Requirements
be designed and constructed to include live music noise attenuation measures that will reduce noise levels from any outdoor live music entertainment venue (a public premises where music is played in the open air, such as a major sports and recreation facility) to below 45 dB(A) (a-weighted decibel), assessed as an Leq (Equivalent Continuous Sound Level) over 15 minutes
meet any additional requirements specified in a schedule to the overlay (where the overlay applies). Note: Clause 53.06 will not apply to a new noise sensitive residential use to which clause 45.13 applies. A schedule to the Live Music Overlay that includes additional requirements may depart from the ‘agent of change’ principle if it proactively protects noise sensitive residential uses against future live music entertainment venues.
VicSmart applications
The responsible authority is required by clause 71.06 (Operation of VicSmart applications and process) to consider any relevant requirement in clause 45.13, clause 53.06 and any associated schedule even if an application is a VicSmart application.
Understanding the noise limits specified in clause 45.13 and clause 53.06
The EPA Noise Requirements included in clause 45.13 and clause 53.06 were developed specifically to protect residents from unreasonable and aggravated noise from live music entertainment venues. The EPA Noise Requirements recognise that music noise can have a more significant effect on residents than other urban noises.
The EPA Noise Requirements prescribe separate noise limits for the day, evening and night periods for an indoor venue, taking into consideration the particular characteristics of music noise which need to be assessed differently to more broad band noise sources.
Other standards
The Australian Standard for Acoustics – Recommended Design Sound Levels and Reverberation Times for Building Interiors – AS 2107:2016 (AS2107) recommends bedrooms in dwellings near major roads be designed to meet specified noise levels. Some residential development standards, local planning policies and planning permit conditions that relate to new dwellings in locations with a high level of external noise also specify acceptable noise levels. While these measures may be suitable in some environments, they do not properly address music noise.
The AS2107 standard is primarily intended to be applied to steady noise sources, such as road traffic and mechanical plant noise. This standardised measure does not acknowledge that music noise presents variable noise characteristics, specifically low frequency and rhythmic qualities that can interrupt sleep.
Meeting the planning requirements
The noise requirements of clause 45.13 and clause 53.06 should be met. However, a council may reduce or waive these requirements if it is satisfied that an alternative measure meets the purpose of the clause.
In some instances, the most practical and effective outcome will involve treatment to both the noise making and noise receiving premises.
This allows for alternative approaches such as a residential developer improving the noise attenuation in the live music entertainment venue as an alternative to, or in combination with, attenuation measures in the proposed residential development. For example, this may be more cost effective than undertaking noise attenuation of multiple new dwellings in some situations.
It also provides for a residential or venue developer to implement established building and urban design techniques for noise attenuation where the council considers this approach is warranted.
Some techniques used to address live music noise can be easy to achieve and be low-cost. These measures can also result in other benefits. For example, installing insulation, sealing draughts and effective window coverings will not only help address noise, but will also reduce the need for supplementary cooling or heating and will provide passive energy gains. Attenuating against live music noise may also help address other noise nuisances such as waste collection and traffic noise.
While clause 45.13, clause 53.06 and the EPA Noise Requirements do not prescribe noise limits for noise associated with the arrival and departure of people attending a premises, a venue applicant should still identify how they propose to manage the behaviour of patrons coming and going from the venue so that nuisance impacts on neighbours are minimised. This information can be explained in a venue management plan.
ATTENUATING A LIVE MUSIC ENTERTAINMENT VENUE
Measures that may help meet the requirements of clause 53.06 include:
implementing a venue management plan focussed on minimising live music noise
positioning entertainment rooms, the stage and loudspeakers to increase the distance between the live music noise source and any noise sensitive residential use
orienting the stage or loudspeakers of external entertainment spaces to direct live music noise away from any noise sensitive residential use
incorporating measures such as acoustic glazing, wall, ceiling and roof construction
sealing gaps, joints and service penetrations and using acoustic insulation
using setbacks and acoustic fencing
limiting live music noise leakage by using vestibule / sound-lock entry arrangements
installing a sound limiter to cap the volume of any amplified sound to an appropriate level.
While all the above measures will be helpful, some may have a limited effect on live music noise emissions in different circumstances. A suitably qualified and experienced acoustic specialist can advise on measures that can achieve the requirements of clause 53.06.
ATTENUATING A NOISE SENSITIVE RESIDENTIAL USE
Measures that may help meet the requirements of clause 45.13 and clause 53.06 include:
locating noise-sensitive rooms (particularly bedrooms) away from significant live music noise exposure by using spaces like hallways, laundries and storage as a buffer
using acoustic glazing, wall, ceiling and roof construction
sealing gaps, joints and service penetrations and using acoustic insulation
using setbacks and acoustic fencing
using a noise masking system (for example by relying on heating, ventilation or air- conditioning noise).
Is a professional acoustic assessment always required?
A report from a suitably qualified and experienced acoustic specialist will usually be required with an application. The report should detail recommended mechanisms to mitigate noise impacts and should verify that the proposed noise attenuation measures will be satisfactory to meet clause 45.13, clause 53.06 and any associated schedule.
Addressing low frequency live music noise can be challenging, as individual contexts will present different noise resonance conditions. The advice of suitably qualified and experienced acoustic specialist will usually be needed to establish the most appropriate requirements for a development proposal.
However, an acoustic report may not be necessary if the context of the site, surrounds and proposal present obvious attenuation solutions or when the professional assessment is unlikely to improve outcomes.
Small residential developments or minor changes to an existing live music entertainment venue, may not need a professional acoustic assessment where council and the applicant can identify and incorporate established design measures for acoustic attenuation, such as locating bedrooms of a new dwelling away from a low-impact venue.
NOTE:
Live music entertainment venues may still have obligations to adopt live music noise attenuation measures outside the planning system in accordance with the EPA Noise Requirements.
Writing permit conditions
Conditions to attenuate live music noise are best established on a case-by-case basis, taking into account factors such as:
the site context and surrounding land uses
the relevant planning requirements
the information submitted with the application
established building and urban design techniques for noise attenuation.
Noise attenuation measures should be identified at the start of the planning permit application process to allow clear and transparent assessment of the measures against the relevant requirements. These measures should only be imposed as conditions where council is satisfied that the condition will produce the required outcome. However, in some instances, local circumstances may warrant conditions requiring verification testing by a suitably qualified and experienced acoustic specialist at a specified stage. When adopting a noise attenuation measure, the responsible authority should be cognisant of the cost and its proportionality to the development.
The requirement for endorsed plans that identify the relevant acoustic attenuation measures and/or the inclusion of conditions that reference specific requirements detailed in any acoustic report may be a helpful starting point in drafting effective live music noise attenuation conditions.
Enforcement of live music noise complaints in the planning system
A collaborative approach is often the most effective and quickest means of solving noise conflict. Residents and live music entertainment venue operators should be encouraged to cooperatively solve noise issues together to achieve a balanced solution.
Where the EPA Noise Requirements or relevant planning permit conditions are breached and a workable solution is not established between parties, a council may take formal enforcement action to achieve compliance.
A planning permit that considers clause 45.13 or clause 53.06 will include conditions based on the requirements set out in those provisions. Enforcement action will therefore focus on compliance with conditions specified in the planning permit.
Live music entertainment venues may still have obligations to adopt noise attenuation measures to comply with the EPA Noise Requirements. A live music entertainment venue that is in breach of the EPA Noise Requirements can be subject to separate enforcement action by the EPA.
Noise complaints can be enforced by:
Local government planning enforcement officers, who can enforce planning permit conditions pursuant to the Planning and Environment Act 1987.
EPA officers, who can issue a remedial notice under section 271 or 272 of the Environment Protection Act 2017 for breach of the Environment Protection Regulations 2021.
Liquor licence compliance inspectors, who can enforce liquor licence conditions under the Liquor Control Reform Act 1998.
Police officers, who can enforce liquor licence conditions, as well as direct a live music entertainment venue to act to abate noise under section 169 of the Environment Protection Act 2017.
Local government environmental health officers, who can act under the nuisance provisions of the Public Health and Wellbeing Act 2008.
Some useful resources
Local Government
Find contact details for all Victorian councils at:
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