A legal solution to the future of outdoor music festivals in WA?

Recent media reports have detailed how popular music festivals such as Big Day Out may no longer be including Western Australia in their touring schedules, due in part to a perceived lack of cooperation on the part of local governments.  Changes to legislation may, however, potentially provide one practical solution to the inherent difficulties obtaining approvals by music promoters and those in the associated liquor and entertainment industries.

Historically, music promoters have been required under the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) to obtain permits from local governments before hosting events that are likely to exceed maximum permitted noise levels.  Frustratingly, the Noise Regulations required a new permit to be obtained from a local government for every individual event held.  Local governments are sometimes influenced by vocal residents and others, above broader community interests of hosting an event and in that regard, noise approvals have been difficult to obtain historically.

Recent amendments to the Noise Regulations have, however, created a mechanism for a particular noisy venue to be approved, as opposed to simply having a single noisy event approved.  Importantly, the ultimate gatekeeping in terms of noise regulations is now the Department of Environment Regulation (DER), as opposed to any local government, thus removing a large degree of politics from the approvals process.

This is how the new noise approvals system works in practice:

  • A particular venue is identified by a music promoter as a location where multiple noisy events may take place.

  • The occupier of the venue applies to the DER for an approval of the venue to host multiple noisy events.

  • If the DER is satisfied with the proposal, it will grant an approval (subject to conditions) allowing a specified number of noisy events to be held at the venue within a particular time frame.

The DER cannot simply “rubber stamp” approval of a noisy venue, as the Noise Regulations still require comment to be sought from local residents and the relevant local government.  The Noise Regulations however provide for an appeal to be made to the Minister in the event of the DER making an unfavourable approvals decision.  Interestingly, the appeal right is conferred on any “person aggrieved”, which could potentially include music promoters, venue occupiers and even disgruntled residents.

In light of the amendments to the Noise Regulations, promoters of music events should investigate and actively pursue obtaining venue approvals under the new regime.  The Noise Regulations as amended provide a more streamlined system of assessment for noisy activities and will ultimately facilitate the granting of approvals with greater commercial certainty.

The amendments to the Noise Regulations equally provide commercial opportunities for the operators of other establishments that are prone to exceed maximum permitted noise levels, such as concert venues, licensed facilities and sporting grounds.  Any operator of a venue for which compliance with the Noise Regulations is a relevant business concern should consider applying to obtain a noisy venue approval.

The new Noise Regulation system, whilst potentially a positive step forward in favour of noisy events, does not at this stage alter the processes of the liquor licensing authority for approval if the event is to be licensed.  The licensing authority approval process ordinarily involves elements relating to noise.  It is hoped, however, that the licensing authority will look favourably on an event organiser that has been approved through the new DER system.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.