On the 31^st October 2025, the Minister for the Environment, Steve Dimopoulos, announced two major reviews to modernise noise rules for live music and outdoor events. The regulations governing music sound emissions from indoor live music venues in (yet to be implemented) live music precincts are currently open for input from the live music industry and residents.

Stakeholders can have their say at https://engage.vic.gov.au/EPAs-live-music-precinct-noise-regulation-review.

This article is my contribution to the discussion.

Currently, for the night-time period, the EPA’s noise protocol, used for music sound measurement in conjunction with Environmental Noise Regulation under the Planning and Environment Act, specifies that for each Octave between 63Hz and 4kHz, a measurement over 15 minutes music sound emissions must not exceed the background sound by 8dB in any octave. If it does, the source is considered to be creating Unreasonable Sound. If it exceeds 20 dB in any octave, it is considered to be Aggravated Sound (https://www.epa.vic.gov.au/unreasonable-noise-guidelines/legislative-noise-framework). The difference, besides one being louder than the other, is that Unreasonable Sound requires the emitting venue to lower their live music emissions as much as practicable and affordable, to get back into compliance, whilst Aggravated Sound emissions attract heavy fines and immediate action to cease live music sound emissions at such excessive levels.

When the Agent of Change has been applied (in proposed live music precincts), the measurement must be made within a sensitive room with windows and doors closed. An alternate measurement point is often used and “may be either within or outside a noise sensitive area. It must be chosen so that the noise at the alternative assessment location is representative of the noise exposure within noise sensitive areas” (https://www.epa.vic.gov.au/measure-music-noise-alternative-assessment-locations). The reasons for using an alternative measurement point are usually related to a lack of access.

This measurement methodology used to determine Unreasonable and Aggravated Sound is highly complex, error-prone, requires expensive calibrated measurement equipment and in some situations, specialist analysis software. As such, it can’t be used by Live Music Venues to manage sound emissions at a chosen point. It is necessary for the live music venue to engage specialist acousticians to take measurements and analyse the results.

One of the important concepts outened in the Environmental Protection Act is “to determine what is (or was at a particular time) reasonably practicable in relation to the minimisation of risks of harm to human health and the environment, regard must be had to the following matters— (c) what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks; (e) the cost of eliminating or reducing those risks.”

Due to the complexity, accessibility of the necessary measurement equipment and analysis software required to analyse music sound emission to the current noise protocol standard, it can’t be expected that live music venue operators can “reasonably” practically satisfy their responsibilities under the act. Nor can it be regarded that the cost of music sound emission monitoring is reasonable and affordable for most indoor live music venues to manage their compliance responsibilities.

In short, live music venues are effectively flying blind and are, unfortunately, often set up to fail.

A proposed better alternative.

A methodology that is emissions-based using dB(C) measurements overcomes many of the barriers for Indoor Live Music Venues to manage their own Live Music emissions. Commonly available handheld sound measurement meters could be used to take measurements by a live music venue operator for the purposes of assessing compliance to music sound emission regulations.

If two or more measurement points of known distance from the live music venue are used where one of those points is “chosen so that the … location is representative of the noise exposure within noise sensitive areas” (Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises, and entertainment venues, EPA Publication 1826.5, September 2025).

This avoids the complexity and expense of engaging an acoustician. Accuracy is maintained as the background sound component of the measurements is cancelled out in the calculations, eliminating errors by using background sound measurements taken at different times of the night or on different days.

The following formula can be used to calculate the music component in dB (C) at the chosen point.

Formula

It is possible to estimate the music level in dB without directly knowing the background sound level, using at least two sound readings at known distances from a single music source.

Formula summary

By following these steps, you can estimate the music level in dB based on the two sound readings at known distances, without needing to know the background sound level directly. The equations allow you to isolate the music level through the relationships between the measured intensities and distances.

Assumptions and adjustments

The current noise protocol assumes that the frequency weighting of background sound is similar to that of live music by applying 8dB headroom to each octave from 64 Hz to 4kHz. dB C measurements are flat over this frequency spectrum range. As the vast majority of amenity problems occur in the 64Hz to 250Hz region, dB (C) can be considered an appropriate measurement weighting to be used in most situations in the context of managing music sound emissions.

Difference between readings dB (C), dB (A) and L_OCT90

dB (C) reads 2 dB higher than dB (A) on Pink Noise, recorded music is around 5 dB (C-A) whilst live music typically reads 8.6 dB (C-A), with a standard deviation of 2.2 dB, indicating that Live Music has a higher component of LF energy. Electronic Dance Music (EDM) would likely be greater again due to modern production techniques designed to maximise low-end potential in the music.

Both Live Music and Ambient sound have equal low-end emphasis, so no adjustments need to be made.

In such case if using dB(C) minus dB(A) readings can focus results in the sub 500Hz region of interest.

Red = C weighting

Orange = A weighting

A suggested limit

If we assume that inner-city ambient sound is typically 45dB using the Environmental Reference Standard Category II - Outdoor L_Aeq,8h from 10 p.m. to 6 a.m, plus 5dB for economic activity. Category II covers land uses such as Activity Centre, Commercial, Mixed-Use, and Industrial Zones, which are typical of live music venue locations in live music precincts. Other inner-city ambient sound measurements range from 52 to 55 dB (see references). If we subtract the internal noise floor of an apartment used in the noise protocol of 45 dB (s103 (b)), we can assume that the minimum level of building fabric sound attenuation is at least 5 dB without taking into account internal noise sources such as a fridge, air conditioner and mechanical ventilation. This seems low to me as its estimated that external building fabric can range from 30 to 60dB depending on construction type. Typically, single brick construction provides around 45db and double brick with a cavity provides 50dB. Such brick construction types are typical where live music precincts are likely to be located, and any residential developments constructed after the introduction of s53.06 of the Victorian Planning Provision would not be of lightweight construction (plasterboard, cladding and either timber or steel framing), which provides 30 – 40 dB attenuation.

The lack of a standard in the National Construction Code for sound attenuation for external walls in residential construction is a clear oversight that needs addressing by the government, which would lead to better amenity outcomes for future residents in areas such as activity centres and where the night-time economy is active.

Therefore, a suggested music component (excluding background sound) of the chosen measurement point should not exceed the background sound component by more than 13-15 dB directly outside a habitable room and not less than 20m in proximity. To the casual observer, this is higher than the existing 8dB in any octave, but it should be pointed out that dB(C) readings measure more energy as they cover a broader spectrum than a single octave.

However, if the weight of the measured music noise is disproportionately weighted in low frequencies, all input figures (ambient and live music sound emissions) should be used in dB(C-A). This can be determined from a raw measurement where a dB(C) measurement exceeds a dB(A) measurement by 8-10dB. This then focuses the analysis on the low-end frequency range below 1kHz.

Whatever the compliance number ends up being, it should be tested against blind listening tests in simulated scenarios against the current noise protocol. After all, the above values are very much a back-of-the-envelope calculation. It is also possible that the suggested 13-15 dB value of music sound emissions may be too low, so testing in a real-world environment is essential before final limits are decided upon.

Whatever the numeric value lands on, the above methodology is a practical and likely more accurate alternative to the current noise protocol used for the nighttime period.

I suggest implementing it as an alternative to the existing noise protocol, so that if a venue’s emissions are below the specified limit, the music venue is deemed compliant.

The existing methodology is then reserved for use in the planning context, where it excels, and in the rare cases where the alternative methodology is simply impractical to use.

Constraints on the alternate proposed methodology.

It is important to consider that the proposed alternate methodology for managing sound emissions will not necessarily work in all scenarios. For instance, if a residence abuts or is closer that 20m to a live music venue (across the road). If the residence’s habitable room is too close to or even adjoins the live music venue, the use of external measurements in such scenarios would be inappropriate. Internal sound measurements need to be used so that the entire transmission path is captured. In such situations, the current live music protocol should be used as it is a more rigorous methodology.

Some work is required to establish robust constraints for when the proposed alternative dB (C) or (C-A) sound measurement methodology is appropriate to establish a Deemed to Comply compliance status for the venue.

Finally, the scope of this paper has been in relation to indoor music venues. However, with well-thought-out constraints, the proposed methodology could also be used for outside live music events in live music precincts.

Jon Perring - 19 March 2026

References

https://www.epa.vic.gov.au/noise-limit-and-assessment-protocol-control-noise-commercial-industrial-and-trade-premises-and-0

https://www.epa.vic.gov.au/unreasonable-noise-guidelines/legislative-noise-framework

https://www.precisionaudioservices.com/blog/understanding-spl-c-minus-a

https://www.epa.vic.gov.au/environment-reference-standard

Background sound references from on-line acoustic reports

https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.melbourne.vic.gov.au/dmstreamer/pr/18481233/TP-2024-491-6.pdf&ved=2ahUKEwiO28T7g4OTAxUZSWwGHSFXJEwQFnoECCUQAQ&usg=AOvVaw3fC5WohKBwbuR1Gejp7naG

file:///Users/jon/Downloads/TP-2021-455~A-4.pdf

https://www.melbourne.vic.gov.au/dmstreamer/pr/18395648/TP-2024-29-4.pdf&ved=2ahUKEwiO28T7g4OTAxUZSWwGHSFXJEwQFnoECCMQAQ&usg=AOvVaw1mHRKA5dJy1p7HNnpSMD_k

At the meeting, Mayor Steve Jolly said this policy had resonated with Yarra residents, particularly among younger constituents.

Having looked at the detail, the policy looks robust and well thought out – and right on the money. The maps and venue list appear to be accurate. A lot of work by council officers has clearly gone into producing such a detailed and well-rounded policy.

Yarra is now the second council, after the City of Port Phillip, to define Live Music Precincts and write the associated planning policy.

What these precincts mean on the ground is better protection for both live music venues and residents alike. By extension, live music precincts protect the live music ecosystem that supports musicians’ ability to play and good news for residents who choose to live, sleep and enjoy live music in Melbourne’s culturally rich and dynamic inner city.

Yarra City Council Live Music Precincts

• Yarra Council voted to introduce Live Music Precincts, Victoria’s second council after Port Phillip

• Precincts require developers to soundproof new apartments near existing venues via Agent of Change principle

• Victorian government developing Cultural Overlay for early 2026 to streamline precinct rollout

• This represents the most significant council initiative to support live music culture

Primarily, they protect live music venues from encroaching residential developments by placing the responsibility of soundproofing on the residential developer through the Agent of Change principle, which was introduced into the Victorian Planning Scheme in an apparent world first after lobbying by the music industry.

Any proposed residential development in a live music precinct must be soundproofed, which is good news for anyone wanting to move into an inner city apartment, live close to bars, restaurants, venues and buskers, but still get a good night’s sleep.

It will also protect them from actual noise pollution – traffic noise, sirens, garbage collection and street noise. But the key policy objective here is also protection from any live music sounds present within the soundscape.

There’s a reason why inner city councils are embracing this policy. It is a win-win for the entire community with no downsides.

What this plan does is increase the precision of the existing planning laws (s53.06 and 13.07-3s of the Victorian Planning Provisions) by documenting the location of existing venues and mapping venue clusters.

Why planning maps matter for live music

Since the initial live music venues clause in the VPP was introduced in 2015, council planners have had no reference tools to locate live music venues, to assist them in determining whether the Agent of Change principle should be applied to a proposed development or not. In the past, major mistakes have been made, resulting in expensive VCAT cases that venues had to fund and run to have the law applied where it should have been automatically.

As part of the State Governments’ push to fast-track housing supply, third-party appeal rights have been drastically curtailed. So, the music industry can no longer rely on VCAT to fix planning assessment errors, whether by deliberate omissions by developers in their applications or genuine oversight by council planners.

The Port Phillip and Yarra Live Music Precinct policies now deliver the required information through maps and a list of live music venue locations that council planners need to do their job. This gives live music venues (current and future) the certainty to continue doing what we do without being dragged into expensive court disputes. The policy underpins investment in the sector, particularly considering the Covid hangover and cost-of-living crisis, which has devastated the grassroots live music sector in the last 5 years.

There have been criticisms of Live Music Precincts, but I believe these criticisms are unfounded.

First, in The Age last Saturday, Cath Evans of the Property Council of Australia stated that this proposal to create Live Music Precincts in Yarra and Port Phillip will increase housing costs and complexity.

The Agent of Change provisions in the live music clause of the VPP have existed in the planning scheme for 10 years It’s existing law, so it is already costed into projects. If there are projects that haven’t costed it in, then it should be.

Yarra Mayor Stephen Jolly expressed it best. “Get the violin strings out …

“The people who will want to live in the inner city in an apartment next to a nightclub, they won’t mind paying a little bit over the odds [for soundproofing].”

Defined Live Music Precincts will assist developers in their due diligence when assessing potential development sites by helping them determine whether to cost sound attenuation into their builds. This, in fact, takes the guesswork out of the equation.

Secondly, there is a fear held by a vocal few that Live Music Precincts will create live music ghettos, accelerate gentrification and that venues and events outside precincts will somehow be disadvantaged or discouraged.

This again is not the case because the Agent of Change principle in the Live Music Clause (53.06) applies statewide. In precincts, the Agent of Change is applied by default where there are existing clusters of venues. Live music may move from premise to premise within a precinct.

An example of this is the Punters Club in Fitzroy. It had been a live music venue for 12 years, then wasn’t, as Bimbos/Kewpie it served pizzas for over a decade, and in its current Mark II form, it is again a respected live music venue.

New venues open and close within existing hospitality uses, as you would expect in a pulsating, culturally engaged community such as Yarra and St Kilda. The effect of creating Live Music Precincts is benign for venue location decisions made by future operators, as they are protected either by a precinct definition or the Agent of Change principle outside of defined precincts.

Live music precincts and the listing of venue locations just apply the existing laws more thoroughly and efficiently.

That’s it! There are no edicts requiring live music to be allowed only in designated precincts. So, there is nothing to fear here.

The economic impact of protecting live music

Live Music Precincts have long been a feature of planning schemes interstate, such as Fortitude Valley, The Gold Coast, and Nambour in Queensland, Canberra, Northbridge in WA and a dozen, either designated or about to be, in NSW.

Little work has been done on the economic impact of live music precincts. In the oldest Live Music Precinct, Fortitude Valley in Brisbane, there has been a significant increase in venues and live music activity since 2000, it’s doubled according to an APRA AMCOS statement. This would obviously increase the number of gigs and audience attendance in a precinct.

Other research from the University of Tasmania indicates that every dollar spent on live music results in three dollars spent in related businesses such as restaurants, takeaway establishments, and taxis. Live music is a driver of the nighttime economy, so if it’s growing, so do other proximate retail, hospitality and service businesses.

One caveat to consider: in interstate Live Music Precincts, live music venues outside the polygon are not protected by the Agent of Change mechanism, which would incentivise aspiring live music operators to establish themselves only within the polygon, thereby amplifying venue growth as seen in The Valley. It is therefore unlikely that we will see such a significant uplift in live music activity in Yarra’s and Port Phillip’s Live Music Precincts compared to The Valley in Brisbane.

No research has been done on the gentrification effect of Live Music Precincts on residential housing costs. What is known is that real estate value is overwhelmingly driven by proximity to the CBD, public transport, good schools, etc. There are plenty of gentrified, expensive, affluent suburbs with no live music venues, such as Toorak, South Yarra, Armadale, Hawksburn, Clifton Hill, Camberwell and Parkville.

Also, live music venues have been slowly moving out of the inner city, to less expensive suburbs along High St and Sydney Rd towards the cheaper northern suburbs, where commercial rents are cheaper, and larger audiences are concentrated as groups of students, musicians and younger people who tend to live there. A case for a correlation between live music precincts and gentrification can’t be made on the available evidence.

What happens next for Yarra City Council, live music policy

It’s great to see both the Yarra City Council (promised and delivered by Mayor Steve Jolly) and Port Phillip have been listening to the local music industry and are falling into line to support contemporary national live music policy trends that also happen to deliver broader economic benefit.

The State Government, however, has been slow to respond. The planning amendment necessary for the Port Phillip precincts in St Kilda and South Melbourne to become a reality has been awaiting the minister’s signature for nearly two years, and it’s now five years since live music precincts were introduced into the planning scheme.

However, in the last few months, the State Government has begun working on the promised new Cultural Overlay to better implement live music precincts and locate live music venues in the planning system. An overlay would replace the schedules in the existing Live Music Venues clause (53.06). We hope to see these changes early in 2026, followed, fingers crossed, by the rapid implementation of Live Music Precinct in Fitzroy, Collingwood, Abbotsford, Richmond and St Kilda once signed off by the Planning Minister Sonya Kilkenny. It is an election year after all.

Under the new overlay provisions, councils can then create their own complementary internal live music policies for their live music precincts, such as Live Music Action and Economic Development Plans that enhance marketing activity, plan for micro festivals, co-develop best practice guides and compliance policies that help mitigate vexatious complainants and manage the soundscape in a more nuanced, socially and culturally balanced manner.

Hopefully, the momentum will inspire other councils, such as Darebin. Merry-bek, Stonnington, Geelong and others to follow Port Phillip’s and Yarra’s lead.

Finally, it’s also important to remember that live music is not just any industry.

It’s a major part of our culture. It’s a human right to be able to expect that this community can participate in its culture both as a musician playing a gig in a band or as an audience member (Article 27 of the UN Universal Declaration of Human Rights). This is why I believe it’s essential to protect our vibrant and unique live music scene and, importantly, the spaces in which it occurs.

This Yarra City Council live music precinct policy initiative represents the most important initiative the City of Yarra and the City of Port Phillip have ever undertaken to date to support and nurture live music.

That’s music to this old live music lover’s ears.

• This article was also published in Beam magazine. https://beat.com.au/yarra-city-council-to-roll-out-live-music-precincts-heres-why-theyre-important/

• For more information, see also https://www.yarracity.vic.gov.au/about-us/news-and-media/yarra-locks-its-live-music-heartlands-venues-feel-squeeze

The Planning scheme’s stated purpose relating to live music are:

· “To recognise that live music is an important part of the State’s culture and economy.

· To encourage the retention of existing and the development of new live music entertainment venues.

· To protect live music entertainment venues from the encroachment of noise sensitive residential uses.

· To ensure that noise sensitive residential uses are satisfactorily protected from unreasonable levels of live music and entertainment noise.

· To ensure that the primary responsibility for noise attenuation rests with the agent of change.”

However, at a closer read, these environmental noise regulations are riddled with pejorative terms and characterise music as ‘noise’ (unwanted sound) whilst likening its practice not to producing an important part of our culture but as an alternative to boredom, as ‘entertainment’.

Where the Victorian Planning Scheme seeks to balance access to live music with a resident’s right to sleep and enjoyment of their home, it also protects other sensitive uses such as Child Care, residential institutions, hospitals, etc. Simply put, the VPP balances competing uses without judgment.

In the recent discussion paper, Better Environment Protection Approvals for

Outdoor Events from the Department of Energy, Environment and Climate Action (October 2025), the paper mentions Noise pollution 33 times, Music noise 113 times, and culture twice. Noise is mentioned 458 times, and Music 225 times. This tells us a lot about how the paper approaches the regulation of music in our society and what value it puts on it.

The paper focuses on the regulation that requires attention to reduce red tape. There is no doubt that exemptions are needed, but because of its inherent bias against the value of music, it’s fundamental to understanding the current dysfunction in the context of the regulation’s inherent contradictions.

Let’s be clear!

Music is not noise pollution; it is sound.

However, the EPA’s noise regulations frame music as noise.

Sound is a neutral description of the material that occurs in the environment, and the correct term to be used. It has several types:

Biophonic – living organisms such as animal sounds,

Geophony - weather, sea, etc

Anthropophony – human-generated sounds of which, for our purpose, fall into two types: machine and cultural sound.

Machine noise has its own set of Environmental control standards and regulations. It’s well covered, so we don’t need to concern ourselves with these regulations. All sound generated by machines can be characterised as noise. Therefore, all attempts to mitigate machine noise can be regarded as a public good. Interestingly, the most significant sources of environmental noise by far are transport noise (traffic, aircraft, trains, and trams) and construction noise. Neither of which is covered by the EPA’s environmental noise regulations.

Music is a major component of Cultural Sound and can’t be universally considered noise, as it depends on the context and each person’s point of view as to whether it is considered noise or, a valued cultural product of our society. Of course, a person’s point of view is informed by the genre of music it is, who is playing it and, who is listening to it (the cultural or subcultural grouping), as well as the time it is being played, how long it has been going on, and how loud it is. The characterisation of music as noise is subjective.

The EPA’s definition of Aggravate Music Noise for outdoor events and indoor venues is when the sound level is excessive at a sensitive use location. The EPA can issue fines, and the police can shut down the event. It can be fairly considered music noise or noise pollution in this context only.

Unreasonable Noise (their term) is exactly that: a sound level that is not desirable, falling between acceptable sound levels (compliant sound emissions) and Aggravated Music Noise.

Unreasonable sound levels are acceptable inside an event or venue, but not directly outside a sensitive use such as a residence.

In a pulsating cultural landscape like Melbourne’s, the management of cultural sound, such as music, should be seen as managing competing social and cultural interests, not as a pollutant to be managed and, if possible, reduced to inaudible levels.

Those competing interests need to consider the community’s right to collectively enjoy and participate in its culture (as required by Section 11 of the Charter of Human Rights and Responsibilities for which the Australian Government is a signatory), as well as a resident’s right to sleep and enjoy their home. To achieve this, we need to start designing and dynamically managing our soundscapes.

This is a significant shift from the rigid thinking embedded in the current noise regulations of strict, one size fits all, statewide fixed limits.

Currently, hard dB limits are dictated for indoor venues, outdoor venues and events.

The discussion paper referenced above addresses outdoor venues and events only. It recognises that many events on public land are either over-regulated or the current permit system is a bad fit, resulting in an onerous application process and arduous regulation for the event profile. In particular:

· New Year’s Eve celebrations. Midnight Fireworks and music played late.

· The musical component of the Anzac Day dawn service. Bagpipes and the Last Post played very early in the morning.

· First peoples Australia Day dawn ceremony with music played very early in the morning.

· Weekend Night Markets. Music can exceed concert levels, and music can occur over a period of more than 8 hrs on a single day.

· Cultural Food Festivals. Music can exceed concert levels, and music can occur over a period of more than 8 hrs on a single day.

· Charity Fun Runs with music played in short bursts very early in the morning

The current environmental noise regulations allow for two permit types:

· LO5 -Operation outside of hours or extended operations.

o Private land. Operations outside the standard operating hours of between 12noon to 11 pm on any day or lasting longer than 8 hours.

o Public Land. Operations outside standard operating hours of Monday to Saturday between 7 am to 11pm, and on Sunday or on a public holiday between 9 am to11 pm or a concert on a Monday to Saturday 7 am to 12 noon, or on a Sunday and public holiday from 9 am to 12 noon or lasting longer than 8 hours.

· LO6 - Conducting more than 6 outdoor concerts per financial year.

o Where a concert is held at a location where 6 concerts have already been held in a financial year.

The permits are issued by the EPA.

The proposed exemption of the Anzac Day dawn service and the First Peoples Australia Day dawn ceremony is justified by their high social/cultural significance.

Although their high social/cultural significance is true and a factor, the same is true of all musical events, as they too are an expression of our culture.

Their exemption is better justified because music entertainment is not the focus, it is only played for a short duration, and they are free community events. There is no need to imply a hierarchy of cultural importance.

Permit Exemptions for Cultural Food Festivals, Run Runs, and Night Markets should be decided on their merits (likely to be high) and their community support. A commercial flea market selling imported plastic toys with carnival rides, emitting loud, distorted music, should perhaps not receive permit exceptions, as opposed to an annual African or Latin festival that has live music stages, which should.

Local Government should manage Soundscapes.

The best-placed organisation to manage soundscapes and balance the community’s competing needs is local government. Other events should also be assessed on their merits, not just on the current regulator’s statistically derived categories.

As soundscapes are place-specific and complex, environmental sound regulations should also allow local governments to reduce standard sound level limits in specific places for specific events with low annual frequency. This would allow for music and other cultural sounds to temporarily exceed the sound levels dictated by the environmental noise regulations in the Unreasonable Sound range for a specified period of time and by a specified dB amount. Local government should be able to vary permit conditions or issue permits with its own regulatory settings for event times, duration, and sound levels.

This would facilitate street festivals such as the St Kilda Festival, the Sydney Rd. Festival, the former and proposed revival of the Brunswick St Festival, and other urban and regional community festivals. It would also assist councils in managing dedicated outdoor event spaces through their own permitting processing.

Live Music Precincts

Live Music precincts can be defined in the VPP. The Allen Labour Government has promised to introduce an overlay in the VPP to help define live music precincts in a new section - Cultural Places, moving it from its current location in - Amenity, Human Health and Safety.

This could facilitate nuanced soundscapes management within the framework of cultural significance if the environmental noise regulations were brought into line with the new VPP changes.

The best-placed organisation to manage the soundscapes of a live music precinct and balance the community’s competing needs is again, local government. However, local government does not have the power to override environmental noise regulations (Regulation 122) unless enabled explicitly in the VPP.

The EPA lacks the resources and interest to micro-manage live music precincts and outdoor event spaces. They have also been effectively absent in this space since the current regulations were introduced about five years ago, issuing only standard permits (LO5 and LO6) and logging complaints.

A new set of regulatory tools and standards needs to be developed to be dynamic and simple without compromising effectiveness. Such a tool set needs to be able to adjust acceptable sound levels according to a soundscape’s context and the community’s needs.

For instance,

- The default acceptable sound level for music venues and live music precincts should be lowered at times when schools hold their annual fetes and when street or other festivals with live music are held.

- When schools or child day care centres are not open, a live venue can increase its sound emissions.

- The specific exemptions for iconic Live Music Venues in exceptional circumstances. Historic heritage buildings with a long history of hosting live music, such as The Tote, Night Cat, Thornbury Theatre or the Myer Music Bowl, are examples that need to be specifically considered. They may simply not be able to be soundproofed sufficiently to meet the existing noise regulations due to structural, heritage, or building cost constraints.

A compromise endorsed by the responsible authority would have to be reached to allow the venue to continue its operation. Legal security is vital to enable investment in the live music industry.

Currently, the EPA appears uninterested in playing this role. A process managed by councils achieving these balances should be enacted and defined. This way, venues can have legal certainty whilst achieving the best possible outcome for all stakeholders involved in the process.

This may also involve soundproofing installation on an affected residence, but paid for by the venue. Currently, this practical and sensible solution would not make the venue legally compliant.

A Better Sound Measurement and Management Methodology

A new sound management tool is needed in EPA’s noise protocol. It needs to be simple, emissions-based and fit for purpose. Venues need to be able to take sound measurements of their venue and understand them so they can manage the music sound emissions for which they are responsible.

The current EPA music noise protocol and regulations are inflexible, complex, and require an acoustician to measure and analyse the sound measurements necessary to assess compliance. The EPA’s regulatory framework is impossibly to complex. Venue owners and event organisers would need degrees in physics, law, and philosophy to understand them. It is not fix for purpose.

The current regulations are very similar to the original ‘music noise’ protocol - SEPP-N2, which was introduced back in the 70s. It was never intended to be used in a dynamic urban context to balance competing social and cultural interests. However, it is excellent in the planning context when ascertaining and designing soundproofing solutions for proposed residential developments and new greenfield live music venues. Its role should be restricted to this context and replaced with a simpler system.

A Better Live Music Emissions Standard.

A level of music sound at a fixed distance should be used as a benchmark for the acceptability of venue music emissions, with a buffer of 11 dB depending on circumstances. That would place the dB range within what is currently considered compliant and under what is defined as Aggravated Music Noise in the current regulations.

This can be achieved by taking two sound readings in dB(C ) over 15 minutes. One on the other side of the street (say 8m -10m away from the venue) and a second reading at a further known distance. As the background sound is the same in both measurements, it is cancelled out in the calculation, deriving just the music sound component at the first point.

The Brisbane City Council uses an emissions-based standard in the Valley. This is a single dB (C ) measurement that includes background sound and music sound. This is simpler but less accurate than what is proposed in this paper, although it’s worth reviewing its merit.

The acceptable sound level should vary depending on the time of day. The current regulations allow for two periods, but there really should be at least three periods - Daytime (up to 7 pm), early evening (7 pm until 1 am) and post 1 am.

The rationale for these is that during the day, no one is sleeping, and this is when outdoor festivals and events occur. Variable and flexible acceptable levels could be defined, depending on the circumstances as necessary.

Almost all live music in live music venues occurs between 7 pm and 1 am. In reality, it’s more like 6 to 12 midnight. Most people are not sleeping when live music is performed. A stricter yet flexible range is needed, again depending on context and circumstances.

Dance music (DJs) can go on past 1 am into the early hours of the morning. Everyone is asleep past 1 am, so the strictest standards should apply with no need for regulatory flexibility.

EDM has a different sonic footprint than live music played by bands. Hence, it needs to be managed differently, as it is bass-heavy with a consistent pulse. In some ways, it’s easier to manage the overall level because there is no stage sound, and it is controlled by a single master fader. A stricter standard is needed in this context, particularly after 1am. In a live music precinct, all EDM use would be limited to indoor venues, but for some rural music festivals, exemptions may be required (Meredith / Golden Plains, Falls Festival).

Specific values of standard sound level limits need to be separately considered to take account of the difference between:

- dB(A) and dB(C),

- the absolute dB(A) levels in the regulations that contain music and ambient sound levels compared to dB(C) levels that only contain music sound and,

-the distance of sound measurements taken from the music sound source.

The adjustment of the dB values would need attention to align existing sound levels in the regulations with any changes to a different dB weighting.

Exemptions

Exemptions are required for Sound Marks. These are typical heritage sounds that exceed the noise regulations but are culturally or historically significant. The best examples are church bells, but could include sounds like steam engines, fireworks, historic cannon fire (the 21-gun salute), etc.

Sound Marks could be used to cover exemption for both the Anzac Day Services and the First Peoples Australia Day Dawn Ceremony, both of which occur at significant specific times and locations.

VPP tweaks

Finally, the agent of change is required to take responsibility for the cost of building works required for soundproofing. This can currently be the venue or the permit applicant for the development of a residential building.

This should be sharpened up. As the agent of change in a live music precinct is no longer the venue, some residents need to take on the responsibility of soundproofing if required. This is because the current regulations stipulate that the measurement point is located within the habitable room. The scenario involves existing historic building stock predating the introduction of Agent of Change.

Regardless, these situations should have been resolved by now and will only appear when new owners buy into these buildings or lease them when their amenity expectations are not met. It would be of great benefit if a buyer-beware statement were to be included in the planning report that forms part of section 32 for all contracts of sale for properties that are sold in live music precincts.

Finally, the Victoria building code should include a section on sound attenuation standards for residential buildings designed in live music precincts and when a residential building is to be built 50m or less from an existing live music venue. Such standards would help reduce the design costs of future residential developments, alleviating the need for bespoke site-specific soundproofing design solutions. These standards can be copied as is from the Brisbane City Council’s planning scheme.

Further weaknesses with the EPA’s Current Noise Protocol.

The current EPA noise protocol for music uses background sound measurements as part of the methodology to determine compliance. In the night-time period, the difference between music sound measurements taken over 15 minutes and background sound, cannot exceed 8 dB in any octave.

However, the time when the background sound measurements are taken can make a huge difference in the results.

For example, at an iconic Melbourne Music Venue I will not name, two acoustic reports prepared by two different acousticians yield very different results. The sound measurements were taken at the same place, but the background sound was taken at very different times of the night (1103pm and 3am). The variance in the result is in the order of 40 – 60%!

As can be seen from the graph produced by the EPA, it shows the variance of background sound over 24 hours. The difference between the two background measurements between the two acoustic consultancies can be read from the chart. In other words, the difference between the noise regulation analysis can be directly attributed to the measurement times of the background sound measurement.

https://www.health.gov.au/sites/default/files/documents/2020/02/enhealth-guidance-the-health-effects-of-environmental-noise.pdf

This is why an alternate method based on two dB (C) sound measurements taken at known distances from the venue - where background sound is mathematically cancelled out because it is equal in both measurements- is a better, simpler, and fairer methodology.

Conclusion

The complexity and error-prone nature of the current noise protocol’s assessment methodology, along with its strict, inflexible compliance interpretation, are setting live music venues, festivals and events up to fail.

Buried deep in the discussion papers, Appendix 2, section 6, “Community Value” is acknowledged through several separate references.

“Outdoor entertainment events and music festivals have a cultural, social and economic value. Events provide an opportunity to display culture and foster social connectedness, which are positively associated with general wellbeing ⁴⁴. Furthermore, there is evidence to suggest that the degree of noise annoyance can be influenced by subjective and attitudinal factors ⁴⁵. A positive appraisal of an outdoor music event can be associated with factors of cultural contribution, whether the event is free and accessible to all ages, supports a charitable cause or an awareness raising objective ⁴⁶, or is economically desirable ⁴⁷. Therefore, some jurisdictions vary noise restrictions or grant exemptions from permit requirements to reflect broad community support and create a more enabling regulatory environment for these events ⁴⁸.”

Judging by this paragraph, it seems the EPA understands the social and cultural context of their regulations and that flexibility is needed. Why then, the resistance to “a more enabling regulatory environment”. It is hard to fathom.

However, it is encouraging to see that both the planning scheme and the environmental regulations for music ‘noise’ are under review but the siloed thinking between the responsible ministries is problematic. For better results, both the VPP’s sections on live music and the environmental noise regulations need to be considered holistically in the reform process.

If only the Victorian Governments Live Music Round Table still existed to facilitate, in conjunction with the music industry, pan-government regulatory reform…

Written by Jon Perring, 20^th November 2025.

The Victorian Planning Scheme is also undergoing major reform, intended to turbocharge housing supply by streamlining the planning system for residential developments in transport hubs known as Activity Centers. Simultaneously, the Victorian Labor Party is grappling with policy, behind doors, intended to give the live music industry some regulatory relief, after literally being smashed by the COVID health regulations that locked it down for the better parts of 2020, 2021 and into the beginning of 2022.

This paper will explore, through a case study centered on the experience of the Night Cat, the effectiveness of the current regulations and their impact on live music venues, residential developments, and the regulator’s ability to achieve good, effective outcomes for the community. It will also explore ideas for improving the regulatory framework.

The Night Cat is a unique Live Music Venue of long standing that presents everything from big bands, local and international bands from Rock to Hip-hop to EDM. Its centre stage is unique, allowing the audience an intimate experience from multiple viewing angles. It is also the largest capacity room in Fitzroy / Collingwood, underpinning its importance to the local music scene.

1. The area of interest – Corner of Johnston St and Brunswick St, Fitzroy

For over 35 to 40 years, Fitzroy has long been the beating heart of the live music scene in Melbourne with many small to medium live music venues clustered around the corner of Brunswick St and Johnson St. These include the Night Cat, Baxter’s Lot, Bar Open, The Radio Bar, the Evelyn Hotel, Creatures of Habit, The Old Bar, Bad Decisions, The Punter Club (Mk II), Old Plates, Rooks Return and The Laundry. There have also been venues that have since closed or no longer host live music such as the Gypsy Bar, Cape Lounge, Rochester Castle, The Punters Club (Mk I), Carmen Bar, Kanella Bar, Melbourne Spanish Club, Carmen Bar and The Bull Ring.

In the block, next to the Night Cat and behind the BP service stations, two developments are about to be built. The building on Argyle St housing The Red Triangle is also rumoured to be developed.

Argyle Street also has a small cluster of 19th-century terrace houses behind the commercial uses on Brunswick Street. These long-established houses predate all live music venues in the area.

This creates a challenging urban planning and design environment, and a complex soundscape to manage live music sound levels in order to protect residents' sleep whilst not impacting vibrant Fitzroy’s live music culture.

The regulatory toolbox falls to the EPAs environmental noise regulations: the Noise Protocol[1] and the accompanying noise regulations[2] under the Environmental Protect Act (2017), and the Victorian Planning Scheme which contains a clause 53.06 - Live Music and Entertainment Noise[3], which attributes responsibility to the Agent of Change as to whom must build and pay for the necessary sound attenuation works to protect the sensitive residential uses.

1.1. Agent of Change responsibility.

The Night Cat is the major contributor to the soundscape in the area of interest through their music sound emissions. These emissions would impact any new proximate developments. Greystar and C&R Building sought permits to use and build a large multi-residential development at 151 Johnston Street and 163, 165-167 Johnston Street respectively. They are both with 50m to the Night Cat and, therefore, they are the Agent of Change. The Victorian Planning Provisions (VPP) in s53.06 dictate that they must "ensure that noise sensitive residential uses are satisfactorily protected from unreasonable levels of live music and entertainment noise"

In other words, both Greystar and C&R Building must build and soundproof to whatever the soundscape is measured at. Whether the Live Music is compliant with noise regulations is immaterial to the developers’ responsibility to protect future residents of their development.

C&R Building was unhappy about the impact of the cost of attenuation works on their development. They wished to rein in the unlimited notion of unreasonable sound levels of live music and entertainment noise to something they considered reasonable and therefore cheaper.

In a tactical manoeuvre, C&R Building sought an Interim Protection Order at VCAT to have the Night Cat comply with their planning permit, which states in condition 9:

The level of noise emitted from the premises shall not exceed:

(a) the permissible noise level as specified in the State Environment Protection Policy N-1; (Control of Noise from Industrial, Commercial and Trade Premises within the Melbourne Metropolitan area); and

(b) the permissible noise levels for entertainment noise as specified in the State and Environment Protection Policy N-2; (Control of Music Noise from Public Premises).

The original VCAT testcase (Mylonas v Darebin (2016, VCAT 1583) upheld that a developer must soundproof to the existing soundscape’s levels, whether it is ‘reasonable’ or not. In the decision,

“We think the policy framework is unambiguous where a residential development proposes to locate next to a live music venue that generates noise at night. The Darebin Planning Scheme clearly encourages the continuation of live music venues within the Northcote activity centre. We think that the policy sets the starting point for the discussion of noise attenuation as follows: as the agent of change, the proposed development is expected to include noise attenuation measures that would enable its future residents to enjoy acceptable amenity within their habitable rooms. The measures should ensure that the operations of the music venue are not unreasonably constrained or limited. Compliance with SEPP N-2 is not relevant to the obligation that policy places on the agent of change; that is, the residential proposal cannot transfer all or part of its obligation if there is current non-compliance…

The proposal is the agent of change, and it fails because it would be unable to protect its future residents from the noise from a live music venue. It must find ways to mitigate the noise to an acceptable level, whether they are in the proposed building or in the Open Studio, or some agreed combination.

We agree with the Council any noise mitigation has to be addressed in the proposal rather than as an afterthought. If some or all of the mitigation is to be completed in the Open Studio, there has to be certainty and commitment that measures will be implemented prior to the occupation of the new building.

For the reasons explained above, the decision of the responsible authority is affirmed. No permit is to be issued.”[4]

Returning to the IPO against the Night Cat VCAT, this is where it starts to become sticky. The noise standard SEPP-N1/N2 no longer exist. It has been replaced by the EPA’s environmental noise regulations[5] and the Noise Protocol (Publication 1826.4, Environment Protection Authority).[6] Under the current environmental noise regulations, the EPA are the sole agency responsible for enforcing regulations, yet VCAT was issuing an order to be enforced by the council (Yarra) to enforce a planning permit condition referencing the extinct noise standard.

Putting the question of jurisdiction aside for now, a big difference between SEPP-N2 and the new noise regulations is in the interpretations of compliance. With SEPP-N2, you are either in compliance or not. That is, at nighttime, exceeding the background sound by 8dB in any Octave measured over 15 minutes. However, under the new environmental noise regulations, there is greater leeway.

The current regulations specify 2 new concepts.

Unreasonable sound is where a venue is in excess of background sound by 8 to 20 dB in any octave measured over 15 minutes. No fine is liable on the venue but there is an obligation on the venue to do its best to reduce the sound levels to as close as practicable to no more than 8db / octave, measured over 15 minutes, above the ambient noise level measured at the sensitive use measured either inside if the residence is Agent of Change or outside if it is not.

When considering Unreasonable noise,

"The EPA acknowledges that some noise is inevitable and cannot be eliminated. It is a by-product of human activity of all kinds. Whether noise is unreasonable noise will be considered in this context."

In relation to the sound emitters’ General Environmental Duty.

"The GED (section 25 of the Environmental Protection Act 2017) is central to Victoria’s environment protection laws. Anyone engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste, must minimise those risks so far as reasonably practicable. The GED applies to all persons in Victoria."

‘Reasonably practical’ includes factors such as cost in relation to the business’s ability to finance a solution, technological constraints, and the degree of harm to health.

Aggravated Sound is where the venue sound emissions are in excess of background sound by 20 dB or more in any octave measured over 15 minutes. Fines are leviable, and the venue must cease emitting these levels of emissions when ordered.

If consideration is required to determine any mitigating factors, only the EPA can determine what compliance is in any specific case. Yet the EPA was not a party to the hearing or to my knowledge, anywhere to be seen in relation to the dispute between the Night Cat and C&R Building. Furthermore, the Interim Protection Order issued by VCAT that ordered the Night Cat to comply with its planning permit, and thereby comply with the noise regulations, did not define what compliance actually is in this case, nor did VCAT seek relief by Mandamus to have the EPA enforce its regulations. If the EPA, as the responsible authority, had been involved, the need for a VCAT-issued Interim Protection Order would not have been necessary, and the levels of music emissions by the Night Cat would be clear[7].

The acoustic assessment relating to compliance in this area is extremely complex. The analysis of the soundscape needs to consider outside and insider measurements of existing residence, within 50m of the live music venue, dependent on whether the assessed residences are the Agent of Change or not. This is the case for the proposed developments, some of the proximate apartments, but not the existing terrace houses located on Argyle St.

In the hearing, expert evidence was presented to VCAT that the Night Cat was emitting Aggravated Sound by emitting 26 dB above background sound levels @ 63Hz.

It should be noted that The Night CAT has since taken actions to reduce their sound emission as much as possible with the financial assistance of the community through a GoFundMe[8] campaign raising north of $72k.

Yarra Council's view was:

“Council acknowledges the position put forward by each of these acoustic consultancies. However, Council also reiterates the clear provisions of the Scheme and Tribunal decisions above which demonstrate a clear necessity for new development to provide an acoustic response which is commensurate with the environs it is entering.

It is clear from those decisions that non-compliance of a venue is not determinative of whether or not a new development has provided a sufficient level of acoustic amenity for its future residents.

The regulation of live music venues, is not something which is within the scope of this Committee’s jurisdiction. That is part of a separate process under the Act.

Without these measures, the Amended Plans have not appropriately responded to the noise environs of the Subject Land.”

2. The Greystar Development Planning Assessment.

The permit application to develop 151 Johnston Street, Fitzroy, directly adjacent to the Night Cat, was assessed by the Victorian Planning panels (VCAT Call-in P1537/2023 | Priority Projects Standing Advisory Committee Report | 24 January 2025)[9].

The VCAT planning panel was required to consider the effect that existing uses may have on the proposed and surrounding uses. These included:

· Clause 65.01 requires consideration of ‘the effect on the environment, human health and amenity of the area’.

· At a State level, clause 13.05-1S calls for buildings to be designed appropriately to minimise amenity impacts from noise:

· Minimise the impact on human health from noise exposure to occupants of sensitive land uses (residential use, child care centre, school, education centre, residential aged care centre or hospital) near the transport system and other noise emission sources through suitable building siting and design (including orientation and internal layout), urban design and land use separation techniques as appropriate to the land use functions and character of the area.

· Clause 13.07-1S also reiterates the importance of building design and siting as a means of ameliorating adverse off-site amenity impacts:

· Ensure that use or development of land is compatible with adjoining and nearby land uses. Avoid locating incompatible uses in areas that may be impacted by adverse offsite impacts from commercial, industrial and other uses.

· Avoid or otherwise minimise adverse off-site impacts from commercial, industrial and other uses through land use separation, siting, building design and operational measures.

· At Clause 13.07-1L-01, at a local level, there are a number of objectives and strategies which apply to this Permit Application as a residential use within 50m of a live music venue.

· Important objectives under this clause (and relevant to Council’s concerns with this proposal) include:

a. To protect the operation of business and industrial activities from new residential use and development.

b. To provide a reasonable level of amenity to new residential development within or adjacent to land in commercial and industrial zones.

· Strategies for residential development under this clause include:

Ensure new residential use and development includes design measures to minimise the impact of the normal operation of existing commercial and industrial operations on the amenity of the dwelling, such as:

Yarra Council advocated that if a permit were to be issued, additional noise attenuation measures as recommended by the Enfield and SLR acoustic reports would need to be incorporated into the development. If these recommendations were not implemented, the Greatsar development would not result in an acceptable planning outcome and would provide a compromised acoustic environs for its future residents.

These recommendation were:

o Proposed wintergardens are constructed of nominal 10mm glass thickness.

o Glazing behind wintergardens and living rooms without wintergardens is a wide airgap glazing system, nominally using 8mm glass / 12mm air /10mm double glazed unit, with 160mm airgap and 12mm secondary glazing.

o Removal of south-facing windows to studio apartments on the south-west corner.

o Internal redesign of the apartments on the north-west corner so that bedrooms do not have direct exposure to the west, unless behind a winter garden).

The SLR report states that “the proposed glazing configurations represent substantial upgrades from standard construction and are the highest-performance systems we have reviewed for the City of Yarra. However, they note that where facades are required to be fully sealed to control noise ingress, the building must be designed to ensure adequate fresh air provision without compromising the acoustic amenity outcome. They suggest that an acoustic review should be undertaken at the designed detail stage to ensure that any ventilation pathway introduced is adequately treated.”

The decision, which includes draft permit conditions, including council markup, was based on the submitted acoustic reports. It states,

"b) In the instance that the venue’s existing noncompliance is taken into consideration] The assumed level of music noise at the façade of the proposed development is not to be less than 76 dB in the 63 Hz measurement band, based on an existing non-compliance for music noise from the Night Cat to existing dwellings of 19 dB in the 63 Hz band, unless it is demonstrated, to the satisfaction of the relevant authorities, that an alternative degree noncompliance exists.

c) For any proposal that includes the double glazing detailed in Enfield’s Expert Witness Statement] The basis for the predicted 31 dB sound transmission loss in the 63 Hz measurement band of the glazing system proposed for apartments is to be provided. The proposed system comprises:

i. Insulated Glass Unit (IGU) comprising 8 mm glass / 12 mm air / 10 mm glass

ii. 160 mm airspace

iii. 12 mm secondary glazing"

Importantly, this condition means that the "unreasonable levels of live music" are not unlimited. The limit is 19 dB above ambient sound levels at any octave or 1 dB less than Aggravated Sound levels, measured over 15 minutes. It is this level that a developer must soundproof to, as measured outside. The specifications of the required attenuation works from the acoustic report were also listed (above).

In other words, the decision summarises and states,

"To ensure that noise sensitive residential uses are satisfactorily protected from unreasonable levels (no less than 19 dB above background sound at any octave) of live music and entertainment noise".

By limiting the required attenuation to 19 dB above background sound at any octave, VCAT determined that the alternate layout and the winter gardens were not required

The original test case of Mylonas v Darebin was decided before the introduction of the concepts Unreasonable and Aggravated Sound, referencing the extinct noise standard SEPP-N2. However, the Greystar Planning Panel decision was built on what Unreasonable Sound meant in the planning domain and aligning it with the meaning of Unreasonable Sound in the EPA’s environmental noise regulations.

The lexical alignment of the word “Unreasonable” in both the EPA noise regulations and the VPP s53.06 was probably serendipitous, but it does now help better integrate the two regulation frameworks and generally imbue a better understanding of the concept.

The final draft conditions bury the detail in the acoustic reports, but for the sake of completeness, are as follows:

“Acoustic report

19. Before the use or development commences, excluding any demolition, bulk excavation, site preparation and site remediation, an amended Acoustic Report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Acoustic Report will be endorsed and will form part of this permit. The amended Acoustic Report must be generally in accordance with the Acoustic Report prepared by Enfield Acoustics and dated 13 October 2024, but modified to include (or show, or address):

a) any changes required to comply with Condition 2.

20. Within 3 months of the commencement of the use, an Acoustic Report to the satisfaction of the Responsible Authority must be prepared by a suitably qualified acoustic engineer and must be submitted to and approved by the Responsible Authority. When approved, the Acoustic Report will be endorsed and will form part of this permit. The Acoustic Report must assess the following:

a) noise from mechanical equipment, including the substation to Argyle Street, be designed to comply with both the Noise Protocol (Part 1) (Publication 1826.4, Environment Protection Authority, May 2021) at both the apartment building across Argyle Street and in the apartments of the building subject to this permit. Consideration should also be given to the EPA Victorian guidelines for low frequency noise (Publication 1996).

b) any noise limits and mitigation works committed to in the Endorsed Acoustic Report pursuant to Condition 19 are achieved.

c) assess the compliance of the use and, where necessary, make recommendations to limit the noise impacts in accordance with Environment Protection Regulations under the Environment Protection Act 2017 and the incorporated Noise Protocol (Publication 1826.4, Environment Protection Authority, May 2021) as may be amended from time to time, or any other requirement to the satisfaction of the Responsible Authority.

21. The provisions, recommendations and requirements of the endorsed Acoustic Report must be implemented and complied with to the satisfaction of the Responsible Authority.

22. The use and development must at all times comply with the noise limits specified in the Environment Protection Regulations under the Environment Protection Act 2017 and the incorporated Noise Protocol (Publication 1826.4, Environment Protection Authority, May 2021), as may be amended from time to time.”

In my opinion, this is a good result for live music venues because it still gives venues plenty of headroom, not a strict sound level, as to what sound emission levels can be considered to be in compliance within the Unreasonable Sound emissions band. Nevertheless, it is up to the EPA to make the final determination, taking into account the previously discussed mitigating factors.

It's good for developers because they don't have to adhere to impossible sound levels in the Aggravated sound range when attenuating their residential developments.

It’s also a win for the community because much-needed planned and future housing will be protected (in a perfect world) from the urban soundscape.

3. Precincts and Activity Centres

What can be drawn from the above case study is that an area with many hospitality based businesses, nightlife, and live music activity is also likely to attract increased development as the 60 new Activity Centres[10] are defined and rolled out. The density of human activity in Melbourne was set long ago with rail and tram infrastructure serving shopping strips and other commercial activity, including hospitality and entertainment. The current spatial overlapping between transport nodes and clusters of live music venues is no accident.

The current “Live Music and Entertainment Venues” planning clause 53.06 is holding up to the demands placed on it, but the new planning rules to fast-track housing supply will have unforeseen consequences that require attention.

The first of these is that councils have no resources to identify the location of live music in order to know when to apply the ‘Live Music and Entertainment Venues’ planning clause 53.06. It has two mechanisms that have not been implemented by the Victorian State Government to identify the location of live music venues in Schedules 1 and 3 of the Live Music Clause of the VPP (s53.06).

3.1. Live Music Precincts

These are the spatial definitions of areas where there are a significant number of live music venues. Obvious candidate examples in the City of Yarra are:

Brunswick St and Johnston Street

Extending from Gertrude St to Alexander Pde along Brunswick St and

Nichols St Fitzroy to Nicholson St Abbotsford along Johnston St

Smith St

Alexander Pde to Victoria Pde

Richmond

Swan St from Punt Rd to Park Grove, Burnley and

Church St from Swan St to the Yarra River.

Also, other important areas are.

Brunswick – Sydney Rd

Northcote and Thornbury – High St

Melbourne CBD,

St Kilda (which is awaiting authorisation from the Planning Minister on its precinct Planning Scheme Ammendment)

and many more. This list is far from extensive.

Festival sites

Inclusion of open spaces in Live Music Precincts that are used for festivals requires protection from the impact of residential development encroachment, otherwise these uses may be lost over time. These are important performance spaces for Live Music. Examples in St Kilda are Catani Gardens, West and South Beach, Pier Lawn O’Donnell Gardens, etc. The loss of these spaces by residential encroachment will compromise events such as the St Kilda Festival over time.

None of these precinct areas has been defined since their introduction into the planning system five years ago. This is depriving Council planners of the tools they need to apply 53.06 to do their job properly. Live Music Precincts are important as they apply the Agent of Change principle automatically within these areas. The requirement to locate Live Music Venues in these areas becomes unnecessary.

Without Live Music Precincts defined, a live music venue may be missed by councils in the planning assessment of a development application. This could be because of several reasons:

· The council or their planning officer is unaware of the location of a live music venue within 50m of the proposed development.

· The planning application doesn’t mention the location of a live music venue within 50m of the proposed development.

· A Live Music Venue does not lodge a planning application objection, alerting the council to their proximity to the proposed development.

The definition of Live Music Precincts largely overcomes these shortcomings.

3.2. Directly List Live Music Venues

The second mechanism for identifying Live Music Venues in the Planning System is to directly list them in Schedule 3 of clause 53.06 of the VPP. This is appropriate for live music venues that are not within a Live Music Precinct or are of significance or of long standing.

For example, in Yarra

1. The Rainbow Hotel, Fitzroy,

2. The Railway Hotel, North Fitzroy

3. The Pinnacle North Fitzroy

4. The Tramways, North Fitzroy

5. The Standard Hotel Fitzroy

6. The Gem Hotel, Collingwood

7. The Boite, North Fitzroy

Other examples could be,

· Myer Music Bowl

· The Palais Theatre St Kilda

· The Regent Theatre

· Princes Theatre

· Festival Hall

· The Forum

· The Archie’s Creek Hotel

· The Theatre Royal in Castlemaine

Music Victoria has been compiling an extensive list of significant Live Music venues based on, amongst other factors, activity over time.

Referencing this Music Victoria list of Live Music Venues in the Planning Practice Note 81[11], when eventually published on Music Victoria’s website, would greatly assist council planners in locating live music venues when assessing development planning applications.

3.3. Why Live Music Precincts and Listing of Live Music Venues is important.

Live Music Precincts are important because they are a win-win for developers, the future occupants of their development and for live music venues.

· Developers can better assess potential development sites with certainty as to their suitability to applicable planning rules.

· Future occupants can rely on properly soundproofed homes protecting their sleep and amenity in areas where the night-time economy is vibrant, and

· Live Music Venues can rely on the planning rules being reliably applied to protect their use, leading (hopefully) to robust protection of Live Music uses.

One of the changes to the planning assessment process in Activity Centres is that 3^rd party appeal rights are no longer possible. Live Music Venues now have to rely on the planning assessment process, applying the Agent of Change principle to any development within 50m of the venue. They can no longer rely on appeals to VCAT to fix up council-issued Notice Of Decision draft permits where inadequate or an absence of soundproofing conditions are applied to residential developments. With the removal of 3^rd party appeal rights, it is critical that the planning assessment process robustly applies clause 53.06 of the VPP where applicable and does not miss proximate Live Music Venues uses as it has been documented (Howler, Whole Lota Love, Gasometer Hotel, etc) in the past.

The City of Port Phillip has spent considerable effort and resources over several years defining live music precincts in St Kilda and has had a planning amendment (C220port ) sitting on the Victorian Planning Minister’s desk for over a year.

Why has the minister not signed off on this amendment?

Other councils, such as Yarra, are watching the Port Phillip experience with interest. The Victorian Government has dragged its heels over identifying Live Music Venues in the planning system. The Schedules to 53.06 remain empty with the exception of the listing of Collingwood Yards, a pet Victorian Government project.

In the meantime, live music venues are vulnerable to being overlooked by the planning system. There are notable situations where this has been the case. The initial application for a development next to Howler and Whole Lota Love in Brunswick and the development next to Collingwood Yards, Circus Oz and The Tote neglected to mention proximity to these Live Music Venues in their initial planning applications, with some initially insisting that the Agent of Change did not apply.

In such situations where the planning scheme is not correctly applied to a development application by not applying the Agent of Change principle where it should have been, and the planning permit is subsequently cancelled by appeal, the Council can be financially liable for compensation to the planning permit applicant and the landowner.

It beggars’ belief that Live Music Precincts and significant Live Music Venues have not been listed in the Schedules to 53.06, considering the possible consequences to stakeholders.

4. Promises, Promises … The consequences of the proposed implementation of Cultural Overlay in the Victorian Planning Scheme.

In the report Planning for Live Music Background and Solution Scoping, Department of Transport and Planning & Creative Victoria, October| 2024 (page 15). It states,

“In November 2022 the Victorian Labor Party committed to protecting the live music sector through a series of measures, including developing a new planning overlay to protect the use of venues for live music.”

The report in an uncited quote (likely made by the then Minister of Creative Industries, Danny Pearson) says.

“Our live music industry is recognised across the globe and we’re putting measures in place that’ll ensure it stays that way, with a cultural precinct planning overlay that protects the use of live music venues – ensuring the venues here today, are here to stay…we’ll also make sure our live music venues remain live music venues.

If re-elected we will introduce a new planning overlay, that will protect the use of a venue for a specific cultural purpose – in this case live music. This will protect our iconic live music from being demolished to make way for high rises.”

The mechanics of this proposal and how the VPP’s current live music clause (53.06) will integrate with this overlay are unclear and yet to be announced at the time of writing.

This election promise has the potential to further delay the important rollout of Live Music Precincts in the existing Schedules to s53.06 of the VPP by acting as a distraction. The idea of protecting Live Music use as a culture is noble, but there are many possible unintended consequences that need to be thoroughly thought through before designing and possibly implementing this policy initiative.

Depending on the design of how the overlay is implemented, these could include:

· The objectives of cultural protection of live music venues and why this is a land-use issue need to be thoughtfully explored and defined,

· How the objectives and purpose of cultural protection of live music venues align with the purpose and objectives of s53.06 of the VPP,

· The consequence of not implementing Live Music Precincts and Listing Venues of Significance immediately needs to be considered.

· The possible regulatory impact of including a new Live Music Venue land-use definition in section 71 of the planning system, if required, such as:

Within zoning definitions - This could result in restricting the location of new live music venue uses to particular zones, such as Commercial and Industrial Zones. The implication would be to ghettoise Live Music Culture and isolate it from the broader community by not allowing its use it in other zones such as Neighbourhood Residential, Multi-use or residential zones even when properly designed.

o Other clauses that currently do not apply to the ancillary use status of ‘live music entertainment’ within Hotel, Tavern and Place of Assembly land-use definitions.

· The downward impact on Live Music Venue freehold values.

This could affect future venue sales, disrupting and reducing freehold finance based on ‘highest and best use’ valuations. This would result in a major negative economic impact on live music Venue operators who own their own freehold, possibly forcing them to close and sell up.

Prohibiting alternatives uses to live music venues’ land uses would do more damage than good by radically changing the freehold value of a Live Music Venue. This can have significant consequences for freehold financing and, therefore, live music business sustainability.

For example, the owners of The Tote Hotel, including myself, purchased the hotel in 2011 and sold it in 2023. In both cases, we did so based on professional property valuations, setting the purchase price. We had to refinance the freehold multiple times in this period (typically every 2 years). The value was determined by the ‘highest and best use’, which was, hypothetically, as a development site. If land use restrictions were placed on the freehold through a protective heritage style overlay, the value of the site would have been reduced by a third to half as the land use would be restricted to a ‘licensed hotel use’.

As the loan-to-value ratio is typically set at about 62% (maximum) for a commercial loan, we would not have been able to refinance with such a large value reduction. We would have had to sell and sustain a significant capital loss. The Tote would have likely ended up vacant or become a standard ‘food and beverage’ pub in such a scenario.

In my opinion, coverage of venues to be represented on a Cultural Overlay should only list venues that are:

• Government-owned,

• Owned by a trust with listing permission given by the trustee,

• Privately owned Live Music Venues of significant cultural value (e.g. Forum, Tote, Festival Hall, etc.). The listings on the overlay should only be considered if initiated by the landowner and consented to by both the landowner and the tenant.

If the implementation of a cultural overlay is restricted to replacing the spatial definition of Live Music Precincts and the location of significant Live Music Venues by replacing Schedules 1 and 3 of s53.06 of the VPP, then this is less problematic. However, this course of action will introduce yet further implementation delays to the existing five-year implementation delay.

The Government’s proposal to implement a cultural overlay should not be prioritised over the full implementation of the s53.06 schedules, and, if pursued, the work should be done in parallel. It should also not be seen as a replacement or improvement of the 53.06 clause, as the purposes are very different and distinct. The government should exercise extreme caution if it is considering a heritage-style policy option to protect live music culture.

The author’s view is that protecting infrastructure use protects the culture. Infrastructure must be continually upgraded and modified over time to meet the demands of the art form and the demands of future changes in government regulation. The combination of the demands of live music's specific needs and the adaptation of the built form that contains the activity creates the necessary conditions for live music culture to thrive. Heritage building controls, focused on the protection of building fabric alone, will inhibit such adaptability.

5. Re-establish a Live Music Regulation Reform Roundtable.

Clearly, there is a lot of confusion in this space. It is vital that the Government engages with the Live Music Industry by establishing a consultation forum, like the former Live Music Roundtable, that is dedicated to regulation reform and can work through these significant and complex issues together.

The Victorian Music Industry Advisory Council has no expertise or experience in live music regulatory reform, which is why a specialist Victorian Live Music Regulation Reform Roundtable is required.

6. Environmental Noise Regulation

One of the lessons from the Night Cat/Greystar case study is that the EPA’s Noise Protocol and accompanying Noise regulations work well when used in a planning context, but don’t work effectively in managing noise emissions in a regulatory context. There are a number of reasons for this. These are,

· The EPA is under-resourced to regulate the day-to-day sound emissions around live music uses. They don’t actively manage any soundscapes and only respond to complaints.

· Most Live Music Venues do not know if they are in compliance or not, and do not possess the technical skill set to determine whether they are.

· Even if the venue knows its sound emission limit, there is no readily available practical guide on how a live music venue can manage its music sound emissions.

The current noise regulations are impractical for venues to manage music sound emissions from live and/or amplified music. There are several complexities that make the application of the current noise protocol beyond what can be expected of a Live Music Venue to comply with the EPA’s noise regulations. This situation is essentially setting Live Music Venues up to fail, and as such, they can’t be expected to fulfil their General Environmental Duty as defined in the Environment Act or comply with the EPA’s Noise Regulations.

The obstacles to venue compliance are,

• The need to use expensive, highly technical specialist, calibrated equipment to take music and background sound measurements.

• The need to contract an Acoustical Engineer to conduct sound readings.

• The difficulty in establishing who the Agent of Change is and, therefore, the measurement points to be used in music sound measurements.

• Where alternative measurement points are required for a sound measurement, specialist proprietary software is required to compute a result from the readings. Such software licenses are beyond the reach of Live Music Venues and are practically only available to Acoustic Consultants.

• The variability of background sound over time is caused by weather, changes in traffic conditions such the reduction of traffic noise over time caused by the electrification of vehicles,, etc.

Furthermore, even in the VCAT hearing for the Interim Protection Order relating to the Night Cat, the decision was far from decisive regarding what compliance with the Night Cat’s planning permit involved. The decision also quoted several absolute dB readings with no reference to the EPA’s noise protocol regarding what these would be in relation to Unreasonable and Aggravated Sound, because the background sound was not accounted for. This indicates that the deciding VCAT member may have struggled to understand the regulatory and technical context of the decision they were making. Absolute dB readings by themselves are meaningless.[12] This is further evidence that the current regulatory framework for the management of music emissions is not fit for purpose.

7. How are measurement points determined in relation to Agent of Change?

In order to establish a location point for a sound measurement of music sound emissions to be taken, who the Agent of Change is, Venue or Residence, must be established to determine if the measurement is taken inside the residence (for a sensitive use) or outside the residence, if the live Music Venue is the Agent of Change.

Planning Permits do not record if the Agent of Change was applied in the planning application assessment process. So, how is the Agent of Change established?

· By the date of when the Planning Permit was issued as to whether it pre or post-dates the introduction of the Live Music Clause (53.06) in the Victorian Planning Scheme?

· By researching the council planning archival records?

· By some other method?

If so, what is it?

Without a definitive answer from the EPA regarding the interpretation of their regulations, it will require a decision by VCAT at some future time to determine how this process of establishing Agent of Change status for a particular land use will occur. In the meantime, the question remains unresolved, fundamentally crippling the EPA’s noise regulations.

7.1. The use and determination of alternative measuring points.

The EPA’s Noise Protocol requires that if a measurement point is not accessible, an alternative measuring point must be used. However, EPA guidelines[13] state

"Calculating an ACC is complex and requires the use of a recognised noise calculation algorithm. It requires a detailed understanding of how noise will travel from point A to point B, and the factors influencing how it travels. For example, the direction of noise, physical structures that may reflect or absorb noise, and surrounding topography."

Source: Draft EPA information sheet titled ‘Measuring and assessing music noise from entertainment venues and outdoor events using an alternative assessment Location’.

Again, this puts the use of the EPA’s Noise Protocol beyond the reach of Live Music Venues to practically use it to manage their music sound emissions, as the use of approved proprietary software (the recognised noise calculation algorithm) is required.

Another issue is that the tolerances used for this methodology are too wide. Acoustic Engineers should be consulted to determine whether this is a practical and manageable problem. Guidelines for establishing acceptable tolerances should be developed and publicly published. No guidelines are currently publicly available.

8. A better method of Managing indoor Live Music Venue sound emissions

A better regulatory approach would be to adopt the emissions-based approach as used in the Valley by Brisbane City Council. This would allow venues to easily monitor their own emissions with a standard low-cost handheld sound meter.

The Brisbane Valley methodology[14], based on venue sound emissions in designated precincts, is time-tested, practical and a proven effective methodology.

From a venue management perspective, external sound emission measurements can then be mapped to a corresponding measurement at the mixing console. This allows the sound engineer to understand internal venue sound levels that correlate to venue compliance sound levels outside the venue. These can then be documented in venue management procedures.

For example, there is existing technology (10Easy) that displays average emission over in dB(A) at the mixing desk over 15 minutes, so if the volume is inching up, the sound engineer can pull the master down over several minutes if necessary. If the sound engineer knows the song is ending or there is a quiet section coming up, they may not need to reduce the volume. Conversely, if there is a large crescendo coming up, the sound engineer can bank some headroom before it, so the impact of the crescendo does not need to be compromised whilst the venue remains in compliance. The entire process is logged by 10Easey to assist the venue in sound emission compliance management

This methodology was presented to the EPA by Marcel Kock of dBcontrol (https://dbcontrole-uk.weebly.com/). However, the EPA have not advocated for its use. By the EPA choosing a highly technical approach to managing conflicts of an acoustical nature relating to music, they have implemented a regulatory scheme that is not fit for purpose in the practical management of music emissions by the organisation responsible for the emission.

The EPA’s music noise regulations and noise protocols, simply put, don't help venues, event organisers, production personnel, or musicians manage the impact of music on nearby residents.

A simpler sound emissions-based approach to manage music sound levels would work particularly well within Live Music Precincts. This would require the EPA to delegate responsibility to councils to manage these soundscapes within Live Music Precincts and would also require changes to the current Nosie Regulations, and the Noise Protocol that sit under the Environmental Protection Act (2017),.

Importantly, by adopting such an approach, venues would be able to easily monitor their emission and manage them to either below or as low as practically within Unreasonable sound levels.

It should be noted that the Victorian Commission for Gaming and Liquor Regulation (VCGLR) chose to remove the clause relating to compliance with SEPP N-2 (the EPA’s noise protocols predecessor) when transition to the current noise regulations occurred. This is evidence that another regulatory authority assessed the EPA’s music noise regulations and protocols as impractical and not fit for purpose for managing amenity. The VCGLR now relies on the standard amenity clause on Victoria liquor licences with no reference to the current music noise regulations.

“AMENITY

The licensee shall not cause or permit undue detriment to the amenity of the area to arise out of or in connection with the use of the premises to which the licence relates during or immediately after the trading hours authorised under this licence.”

One option for the Victorian Government to consider would be to move the current noise protocol methodologies relating to indoor venues to the Victoria Planning Scheme, whilst a simplified emission methodology, such as used by Brisbane City Council, would replace it alongside the existing outdoor venue methodologies in the EPA’s Noise Protocol.

9. Deemed to comply with noise regulations.

Without regulatory reform of the current environmental noise regulations and the accompanying noise protocol relating to music, it needs to be acknowledged that the regulator (EPA), councils and live music venues cannot practically manage soundscapes.

Even worse, many venues are unaware that they may be out of compliance with the existing noise regulations and have no way of determining it without engaging an acoustician at considerable expense.

The management of soundscapes may likely get worse if the Agent of Change principle is not applied vigorously and in all relevant planning situations, due to the location of Live Music Venues not being identified in the planning application process. This could lead to a number of residences being built without the appropriate sound attenuation measures. A situation that could be exacerbated by the anticipated increase in housing approvals due to the new policy changes to the planning system relating to Activity Centres and the removal of 3^rd party appeals rights.

If planning mistakes are made due to the increasing pressures on the planning system from fast-tracing planning applications and ‘deemed to comply’ permit determinations within Activity Centres, realistic noise regulation may become unachievable. Expecting Live Music Venues to comply under a flawed regulatory framework is more than an unreasonable expectation.

As such, Live Music Venues should be considered ‘deemed to comply’ if no noise complaints are received by the responsible authority. This would prevent regulatory abuses by developers motivated by cost-cutting or overzealous compliance officers from fining or prosecuting venues for technical breaches of sound limits where no actual problem exists. It would also mitigate the need for IPOs in the absence of an engaged regulator, such as in the case of the Night Cat recently.

To achieve the ‘deemed to comply’ status, a defence could be added to the music noise regulations that Live Music Venues (indoor or outdoor) can’t be prosecuted if no verified valid complaint exists. This would recognise the situation now and formalise the practical limitations of the current regulations in protecting live music venues from abuse.

10. Local Government control over environmental noise regulations.

The current one-size-fits-all approach to music noise regulation conflicts with the community’s ability to engage with live music in a number of contexts.

These include street festivals, outdoor and venue-based live music festivals, school fetes, pop-up venues located in non-traditional venues and other occasional public performances, both performed outdoors or indoors, that are located in urban areas.

Because of the statewide prescriptive nature of the EPA’s music noise regulations, a balance considering a local community's needs and wishes cannot be found. For example, when a community wishes to put on a live music event for a day or two, that may conflict with the current noise regulations.

It makes sense that councils have the legal ability to either suspend or allow higher music sound levels in a defined area when these events are held, if they are irregular and benefit the community.

Under the former noise regulations, SEPP N2, there was a facility for outdoor music festivals to get an exemption for culturally significant events. However, this exemption was not rolled into the current noise regulations when they were adopted.

For example, in the City of Port Phillip, open spaces are regularly used as performance spaces (Catani Gardens, South Beach, etc).

As it stands now, any street festival located in an urban area is virtually impossible to stage in a legally compliant manner. In practice, when these events do go ahead, they usually ignore the existing noise regulations.

Local government is best placed to make decisions about managing local soundscapes, so it’s only logical that they are given the regulatory tools and power to manage such social contracts, along with the necessary extra resources to do so.

11 Conclusion

The Agent of Change principle, as implemented in the Live Music and Entertainment Clause (53.06), is working and has worked in the case of the Night Cat, but that does not mean it can’t be improved.

The same cannot be said for Victorian noise regulation. Although the EPA’s noise protocol referenced in 53.06 works well in the planning domain, it is a clumsy and overly complex instrument when used to manage music sound emissions by both venues and regulators.

It’s crucial that the Victorian State Government re-engage with the live music industry in regulation reform to ensure that the live music scene is not impacted by the next wave of much-needed housing development.

These include:

· The definition of Live Music Precincts within 53.06.

· The listing of significant Live Music Venues in 53.06

· The implementation of new, simpler and practical noise measurement standards within Live Music Precincts based on the methodology used in the Valley Harmony Plan.

· The EPA delegates authority to local government to manage the soundscapes of Live Music Precincts and other indoor Live Music Venues using a new noise protocol based on the methodology used in the Valley Harmony Plan.

· The Minister for Planning authorise the City of Port Phillip’s Planning Amendment (C220port ) to allow the City of Port Phillip to implement their Live Music Precinct definitions.

· Re-establishing a Live Music Regulation Reform Roundtable to oversee these complex but necessary regulation reforms.

Finally, the recent Federal Government’s ‘Inquiry into the challenges and opportunities within the Australian live music industry’ released its final report. Recommendation number 6 states,

The Committee recommends state, territory and local governments consider designating ‘special entertainment precincts’ in recognition of the economic and cultural value of these places.

Special Entertainment Precincts should benefit from a regulatory regime more supportive to their ongoing viability. This may include exemptions to trading hour restrictions, concessional liquor excise rates and differentiated noise complaint processes.

Further, the Committee recommends the Australian Government gather information on best practice in this area, provide advice to jurisdictions on how to establish and support special entertainment precincts, and monitor the effectiveness of reforms across the jurisdictions that implement them.

These recommendations highlight the importance of getting planning law and environmental soundscape management right through functional regulation. National policy priorities, such as an increase in housing supply, need not be at the expense of live music activity if the policy settings are correctly set.

Live Music is not just another industry with economic significance; it’s also a significant part of our cultural and artistic life. Without dedicated spaces for it to be practised and sensible, practical regulation to protect and manage these places, we are in danger of diminishing or even losing our live music culture. If this happens, it happens by neglect and in doing so, we diminish our being.

Post publication note.

The Greystar building located at 155 Johnston St Fitzroy, behind the BP.has changed hands and is now owned by Pembroke.

https://www.theurbandeveloper.com/articles/pembroke-greystar-fitzroy-btr-site-acquisition

A number of Street address and ownership reference error have been corrected (28th My 2024).

End Notes

[1] EPA Noise Protocol. file:///Users/jon/Downloads/1826%204-1.pdf

[2] EPA Music Noise Regulation Framework. https://www.epa.vic.gov.au/for-business/find-a-topic/noise-guidance-for-businesses/unreasonable-noise-guidelines

[3] Victoria Planning Provisions - Live Music and Entertainment Venues 53.06. https://planning-schemes.app.planning.vic.gov.au/Victoria%20Planning%20Provisions/ordinance/53.06

[4] The full decision relating to the Agent of Change of VCAT in the Mylonas v Darebin (2016, VCAT 1583) VCAT case.

“The clearest expression of the expectations between an existing live entertainment venue and a new sensitive development is contained in clause 53.06 (then 52.43) and Planning Practice Note 81 (May 2016).

The purpose of clause 53.06 is:

To recognise that live music is an important part of the State’s culture and economy.

To protect live music venues from the encroachment of noise sensitive residential uses.

To ensure that noise sensitive residential uses are satisfactorily protected from unreasonable noise levels of live music and entertainment noise.

To ensure that the primary responsibility for noise attenuation rests with the agent of change.

The clause requires that a noise sensitive use must be designed and constructed to include acoustic attenuation measures that will reduce noise levels from an indoor live music venue to below the noise levels specified in SEPP N-2. A permit may be granted to reduce or waive this requirement. The application before us does not include this permission.

Practice Note 81 clearly assigns the obligation to mitigate noise to the agent of change, being the new use or development. It also clearly says that it is unnecessary to consider whether existing noise emissions from a live music venue complies with SEPP N-2. That would be determined through enforcement.

Our assessment

We think the policy framework is unambiguous where a residential development proposes to locate next to a live music venue that generates noise at night. The Darebin Planning Scheme clearly encourages the continuation of live music venues within the Northcote activity centre. We think that the policy sets the starting point for the discussion of noise attenuation as follows: as the agent of change, the proposed development is expected to include noise attenuation measures that would enable its future residents to enjoy acceptable amenity within their habitable rooms. The measures should ensure that the operations of the music venue are not unreasonably constrained or limited. Compliance with SEPP N-2 is not relevant to the obligation that policy places on the agent of change; that is, the residential proposal cannot transfer all or part of its obligation if there is current non-compliance.

We agree with Mr Livingston that Practice Note 81 contemplates that there are multiple ways to mitigate noise. Noise mitigation measures can be implemented in the live music venue or in the new development, or both can share the obligation of enabling new residents to enjoy reasonable amenity without compromising the operations of a live music venue. We agree that the Practice Note encourages co-operation so both broader housing and cultural objectives can be met.

However, we think the onus to demonstrate that appropriate noise mitigation measures are to be implemented, whether in the new development and/or in the live music venue, clearly rests with the agent of change.

Within the above context, we find the proposal before us to be inexplicable and fatally flawed. We cannot support a proposal to place 23 dwellings adjacent to a noisy live music venue, without any noise mitigation measures in the proposed building or in the live music venue. This proposal includes not one noise attenuation measure, despite the adjournments provided by the Tribunal. None are proposed in the Open Studio. It is obvious that residents living in this building would experience unacceptable noise levels on their first night. It is inevitable there would soon be conflict between the residents and Open Studio. Such an outcome would be contrary to policy and to orderly planning.

Mr Livingston says that Mr Evans’ evidence confirms that the proposed building can be protected from unacceptable noise by various measures to that building. He says the details of the nose mitigation measures can be required by permit conditions and resolved through secondary consent.

We do not accept this approach, and agree with the other parties that the obligation is on the agent of change to identify as part of the proposal how the noise mitigation is to be implemented, not as an afterthought. The noise mitigation measures may require a substantial redesign of the north interface with consequential issues as to its fit into a sensitive streetscape, and to the amenity of the dwellings in respect of solar access, daylight and ventilation.

We find that the residents of the proposed building would not enjoy acceptable amenity due to the noise generated by the Open Studio live music venue. We also find the proponent is the agent of change and is expected by policy to provide solutions. It has comprehensively failed to meet this obligation, and this is fatal to this proposal.

We canvassed at the hearing whether we should issue an interim decision and offer the applicant a further opportunity to propose noise mitigation solutions. We agree with the Council and the respondents that the applicant has had ample opportunity to respond to this issue. The proponent has sought the review of the Council’s decision and is expected to be ready to prosecute its case. It is not the Tribunal’s responsibility to manage a flawed proposal, particularly if the solutions are likely to require substantial changes.

We are satisfied that this proposal must be refused, and any further proposal must demonstrate acceptable responses to this issue, to be considered in the first instance by the responsible authority through a new application. “ …

“The proposal is the agent of change, and it fails because it would be unable to protect its future residents from the noise from a live music venue. It must find ways to mitigate the noise to an acceptable level, whether they are in the proposed building or in the Open Studio, or some agreed combination.

We agree with the Council any noise mitigation has to be addressed in the proposal rather than as an afterthought. If some or all of the mitigation is to be completed in the Open Studio, there has to be certainty and commitment that measures will be implemented prior to the occupation of the new building.

For the reasons explained above, the decision of the responsible authority is affirmed. No permit is to be issued.”

[5] EPA Music Noise regulations and framework. https://www.epa.vic.gov.au/for-community/environmental-information/noise/music-noise

[6] EPA Noise Protocol. https://www.epa.vic.gov.au/-/media/epa/files/publications/1826-4.pdf

[7] “Night Cat Holdings Pty Ltd must immediately cease using the land at 137 141 Johnston Street, Fitzroy in breach of condition 9(b) of Planning Permit PL02/1224 and must ensure that the permissible noise levels for entertainment noise comply at all times with condition 9(b) of Planning Permit PL02/1224.” VCAT REFERENCE NO. P265/2025, 31 March 2025.

[8] GoFundMe - SAVE THE NIGHT CAT – PROTECT LIVE MUSIC IN FITZROY

https://www.gofundme.com/f/bulletproof-the-night-cat-against-development.

[9] VCAT Call-in P1537/2023 | Priority Projects Standing Advisory Committee Report | 24 January 2025. https://www.planningpanels.vic.gov.au/__data/assets/pdf_file/0027/744615/Priority-Projects-SAC-Referral-44-Report.pdf

[10] Victorian Government Activity Centres Program. https://www.planning.vic.gov.au/guides-and-resources/strategies-and-initiatives/activity-centres-program.

[11] Planning Practice Note 81 – Live Music and Entertainment Noise. https://www.planning.vic.gov.au/__data/assets/pdf_file/0031/654295/PPN81-Live-music-and-Entertainment-Noise_November_2022_a.pdf

[12] VCAT REFERENCE NO. P265/2025, 31 March 2025. Table 1. Summary of Music Emissions from the Night Cat.

[13] Measuring music noise - alternative assessment locations.

https://www.epa.vic.gov.au/for-business/find-a-topic/noise-guidance-for-businesses/measuring-music-noise-alternative-assessment-locations

[14] Fortitude Valley neighbourhood plan code. https://cityplan.brisbane.qld.gov.au/eplan/rules/0/77/0/0/0/247

What interests me is what flows from that salvo emanating from conservative Australia. After all, it was utterly predictable and should have been anticipated by both the Arts Minister Tony Burke, his advisers and Creative Australia.

Why did Burke’s advisers and the relevant staff at Creative Australia not prepare for such a predictable attack? To assume, in the context of the Trumpian new world order, that our culture war skirmishes would not be ignited with Temu Trumpian accelerant is naive in the extreme.

Notably, as Richard Bell pointed out, the stone throwing Murdoch press insurgent, Yoni Bashan has partisan form. The self-described “business gossip” and crime columnist at The Australian, who broke the story was also the first Australian journalist to be embedded with Israeli forces in Gaza. This speaks volumes about where his politics are situated in the context of Middle Eastern geopolitics.

It seems that Bashan was intent on reading what he wants to see in Sabsabi’s work - You. “It’s not for me to figure out or solve the mystery of what Khaled Sabsabi thinks about Hassan Nasrallah…” “This is all a bit too flutey for me, this sort of stuff,” and yet by citing the image of Nasrallah as proof of You’s antisemitism, even though the image material is in the public domain and has been run innumerable times in news articles and programs, where the context is seen not as controversial but informative.

Good art is situated in the liminal. It provokes and stimulates emotion in a contextual framework. It incites questioning of rusted-on beliefs. It invites us to consider new ways of seeing and, therefore, new ways of feeling and understanding the subject at hand. But only if the viewer is willing.

Clearly, Bashan’s reading of Sabsabi’s work was not shared with the 61,276 people who visited the three-month-long MCA exhibition in 2009. None of them complained that the work was antisemitic, nor were there any protests.

The weaponised article by Bashan was taken up by the newly-installed Coalition Arts spokesperson Liberal Claire Chandler in Senate Question Time, catching Penny Wong on the back foot when she stated that she was unaware of the details of Sabsabi's work and said "I agree with you that any glorification of the Hezbollah leader Nasrallah is inappropriate, and I've expressed those views previously, and I'll certainly get further information for you."

The Glorification of Hezbollah leader Nasrallah? Where did that come from? Chandler, falsely, in her follow-up question, then asserted that Sabsabi was promoting Asama Bin Laden in another work, Thank you very much.

If an image is used in an artwork, it does not follow that it is an act of “glorification” or “promotion” of the image subject. If the same image material is used in the context of current affairs or news, such allegations would not be made.

In contemporary art, context is everything. A considered reading of both You and Thank you very much does not lead one to such conclusions unless, of course, a pre-existing (and often intractable) interpretation is premised.

In 2001, Khaled Sabsabi said

“The dual identities that develop through the migrant experience can create anxiety and uncertainty but can also generate awareness. Going between Arab culture and Western or Australian culture, you have the ability to experience and see and to analyse both cultures, both traditions, both histories”.

The Museum of Contemporary Art in Sydney described You by stating on their website,

“With YOU, Sabsabi looks to draw attention to the brutality of war and of the media-controlled image in the service of ideology-driven propaganda. The title of the work is significant in that it addresses each of us, as individuals, invited to make choices when confronted with media’s ability to vilify or deify.”

https://www.mca.com.au/collection/artworks/2009.153/

My Reading is that Thank you very much is a video montage juxtaposing snippets of video from the 9/11 attack on the New York Twin Towers against a video quote of George W Bush saying “Thank you very much” three weeks before declaring the War on Terror. This is a work of irony implying that, as a result of the attack, Bush had the permission structure and justification for unleashing his own Neocon jihad on Afghanistan and Iraq to deliver them democracy and simultaneously divine punishment through his War on Terror.

Sabsabi said in the Guardian about the work,

“It [was] made 20 years ago and it’s a critique of the brutalisation and the savageness of war … If people actually watch the 18-second video work, they will realise when those images of the horrific terrorist attack that was taking place … they’ll hear screams of torment and torture. It looked at the power of media and how media can be used as a form of propaganda … that changed the way we see the world, the way we stereotype Muslims.”

It is precisely because Creative Australia did not understand the artist’s previous works nor anticipate and prepare the Government as to their nature that they could not confidently or adequately defend the reasoning behind awarding the Australian Venice Biennale representation to Sabsabi and Dagostino.

Instead of pushing back on Chandlers and Bashan’s narrow weaponised interpretation, Creative Australia should have sought opinions and advice from expert art theorists. Instead, Creative Australia chose the cowardly option - the cancellation of Subsabi’s and Dagostino’s contract. In doing so, this act violated Creative Australia’s core objectives as mandated in the Creative Australia Act 2023 of ”supporting artistic excellence, uphold freedom of expression, foster diversity in Australian arts practice, recognise and reward significant contributions in the arts, and promote understanding of the arts”.

There are now consequences that flow from this successful Tory ideological salvo.

In a recent article on Sky News, the Director of the Institute of Public Affairs' Foundations of Western Civilisation program, Dr Bella d’Abrera, stated freedom of expression should not rely on government funding. “This kind of spending will not end until the decision-making is taken out of the hands of ideologically-driven bureaucrats and put back into the hands of the Arts Minister,” she said.

Sky News quoted Sen Claire Chandler, “I want to see our arts sector promoting itself around the country and making itself accessible to as many audiences as possible, particularly in regional and rural areas… When Australians are going out for a night of entertainment, they're not necessarily doing so because they want to hear more about politics.”

It is now apparent that the Liberal arts policy is for arts funding to be controlled by the Arts Minister and focused on non-political entertainment! Schlager and macramé will do well when we live under a potential Dutton Federal Government. Perhaps Chandler might renominate Menzies’ 1958 captain’s call for the Venice Biennial - Arthur Streeton colonial landscapes.

This is a return to the Brandis doctrine where arts funding is not decided by peers with expert knowledge of their art form but by the Minister of the day’s tastes, opinions, and quibbles. It means a possible end (again) of the Australian National Cultural policy as the agreed guideline for decision making in the arts.

This is the consequence of the lack of critical and strategic thinking by Arts bureaucrats and a lack of political spine by our current Arts Minister. Instead, the Arts sector must call out what these attacks on Sabsabi actually are: ideological projections and mistruths. They must not stand unchecked.

The act of not anticipating incoming ideological attacks, accepting these untrue projections on an artwork's intent or simply doing nothing has consequences. As does the sequences of insipid excuses, poorly thought-out defences, and backflips.

The consequences are an increasingly polarised and unequal society. These tactics are the meat and potatoes tactics of fascism, racism, fundamentalist religious groups and any form of politics where one self-interested, self-described group who wishes to subjugate and oppress others. This affair is a strategic attack on a cosmopolitan Australia.

Its worth reflecting on the words of Mike Burgess, Director-General of Security in charge of the Australian Security Intelligence Organisation, who recently said on ABC Radio,

“We've lost the art of civil debate in society. It's okay to argue. It's okay to disagree but Jesus, I wish people would be more curious to just understand, well, why do you think that? Help me understand that. I still disagree with you at the end but at least I've learned something.

At the moment we seem to say - your wrong and therefore, you must be bad and kind of name call. We are disrespectful. I don't think that helps. Robust debate is absolutely brilliant. Lawful protest is absolutely fine. It's just more edge to it, more anger to it or confrontation to it and that's leading to an increase in tensions which leads to inflamed language which can lead to violence.”

Sociopolitical polarisation emboldens the Right, MAGA and the copycat Australian Liberal Party and elements of NSW Labor, to crusade on issues such as antisemitism as a political flag of convenience to legislate draconian laws that can be used against intellectuals, artists and any citizen with an opinion counter to that of the crusader. There are numeriouse examples: the recent draconian anti-protest laws, the criminalisation of racist speech as enacted by the NSW Mimms Government and the proposed cancellation of citizenship and deportation of criminals through Dutton’s current election referendum proposal.

In the wake of Trump’s Project 2025, it's not a stretch for artists like Sabsabi and his supporters to be potentially subject to such laws in the future. This is a frightening comparable situation to the US case of the arrest and current attempt to deport Mahmoud Khalil, a Columbia University Palestinian protest negotiator accused, without evidence, of “pro-terrorist, anti-Semitic, anti-American activity”. This case, sadly, is but one example.

What we are experiencing is a multi-spectrum assault by the Global Right on democracy and artistic, academic and civil freedom both here and internationally. Antisemitism is being used by the right as cover for furthering totalitarian objectives. We can point to the recently revised definition of antisemitism adopted by Australia's 39 universities. The wording invites a conflation of the criticism of Israel with antisemitism. The risk is a critique of the state of Israel, which can be conceived as an attack on Jewish collectivity. Yet Israel is far from being a monolithic state given that 27% of the Israeli population does not identify as Jewish and more Jews live outside of the country than do within. The logic of a critique of the Israeli state, its policies and actions as an attack on all Jews simply doesn’t hold.

The far Right tolerates the cognitive dissonance of conspiracy theories such as Holocaust denialism, the multiple George Soros false narratives, the trappings of Nazism, white replacement theory (remember the Charlottesville Neo-Nazi chant of “Jews will not replace us” and the whitewashing by Trump of the marchers as “very nice people on both sides”), the Musk roman salute and in Australia the enthusiastic adoption of Dural caravan bomb plot to justify the NSW criminalisation of acts of antisemitism. Social polarisation is created through the Global Right’s agitation within the cracks of identity politics. This services their authoritarian goals of minority oppression and disempowerment while claiming virtuous intent.

It’s a slippery slope we are on, and we are unwittingly sliding slowly down it.

Art and music have an important role here as they have the capacity to create and explore the heterotopic space where welded-on opposing ideological positions can co-exist in opposition to one another. In the case of reflecting on the contradictions of Middle Eastern geopolitics, the toxic intractable visions of a religiously motivated Zionist utopia exist in counterbalance to a pre-1948 free Palestine utopia where Israel no longer exists. The sad reality is that these polar opposite utopian visions require the elimination of each other.

Daniel Barenboim once wisely pointed out,

“Many Israelis dream that when they wake up, the Palestinians will be gone, and the Palestinians dream that when they wake up, the Israelis will be gone. Both sides can no longer differentiate between dream and reality, and this is the psychological core of the problem.”

https://www.theguardian.com/world/2008/may/14/israelandthepalestinians.classicalmusic

Art works like "You and Thank You" help fracture these binary paradigms and can help us transcend this hateful blindness.

This year’s Venice Biennale choice may make many of Australia’s politically influential art philanthropists uncomfortable. However, any contribution to help dismantle these delusions through reason, art and music and, in turn, nurture empathy of the other should be encouraged and supported because, ultimately, this is the only moral choice.

So, when we now examine the justification for the cancellation Khaled Sabsabi and Michael Dagostino in this broader context, were the stated reasons ever going to cut it?

The CEO of Creative Australia, Adrian Collette’s and the Creative Australia’s Board excuse was the decision was made in the interests of “social cohesion” and to have continued with the contract would have had the “potential to trigger divisive narratives”. Later, in Senate Estimates, he further lamented the “relentless daily threats to social cohesion” and justified their actions by citing through obfuscated weasel words the importance of Creative Australia’s “social licence”.

Wherever Collette derives his moral authority, it is not derived from the objectives of the Creative Australia Act or the extensively consulted Australian cultural policy - Revive: a place for every story, a story for every place, where he should have sought guidance.

5,500 people in the arts signed a letter to Tony Burke asking the minister to reverse the cancellation of Khaled Sabsabi and Michael Dagostino to represent Australia at the Venice Biennale. This wrong needs to be righted by reappointing them to represent Australia at the 2025 Venice Biennale.

Collette, the Creative Australia board chair Robert Morgan and the board, by their unanimous decision to dump Sabsabi and Dagostino, clearly no longer have the confidence of the Arts community, making their positions untenable. This is why Collette and Morgan must go. This is why the Creative Australia board also must go. This is further evidenced by a growing number (500+) of people who signed a recent letter seeking their resignations or sacking and the rightful reinstatement of Sabsabi and Dagostino.

The community's social licence has been breached, not in the way that Collette expounded but because it is contrary to what the people of Australia’s parliament intended in the passing of the Creative Australia Act 2023.

Finally, Penny Wong or Tony Burke, if elected or not, need to correct the parliamentary record, apologise on behalf of the Albanese Government to Sabsabi and Dagostino and, state that Khaled Sabsabi’s works You and Thank you very much do not “glorify“ the Hezbollah leader Nasrallah or “promote” Osama Bin Laden. It is essential that both the reputations of Khaled Sabsabi and Michael Dagostino are publicly and officially rehabilitated, as they were defamed under parliamentary privilege.

This whole episode is not just a failing of competence and governance but, more importantly, a betrayal of the expert selectors, applicants for the Venice Biennale and the extended arts community. It is a demonstration of cowardice and a profound moral failing.

Thank you very much.

Jon Perring

The sector got well and truly smashed by the lockdowns. It was affected more than any other sector of the economy, and the pronounced Morison “Snapback” never happened. Post-Covid, inflation spiked, and operating costs like public liability insurance ballooned, whilst audiences and the number of active bands halved. The details of the damage are extensive, which I will detail in another forthcoming article. However, the economic and cultural damage to the sector is widely accepted.

Federal and State Governments responded with their standard toolset: Grants.

However, these tools are competitive, ad-hoc, over-subscribed, and require substantial resources and skills to apply for them. The criteria often steer the grant funds into activities that are not critical to the organisation's survival. Whereas Live Music Venues' financial priorities are core fixed costs such as rent, property costs, permanent staff costs, public liability insurance, etc. Many festivals and venues also carry substantial debt accumulated during the lockdowns, which grants specifically can not be directed to addressing.

Examples include grants such as RISE, Live Music Australia, Revive and The Victoria Government's 10,000 gigs program. They mainly target equipment upgrades, training and programming costs. Program-orientated grants do little to reverse venue trading losses and, therefore, result in gig losses. Whereas correctly targeted assistance to struggling venues’ core operating costs will save live music venues and the gigs they host.

What live music venues desperately need is a direct injection of money into their working capital. Without this, live music venues and festivals will continue on a trajectory of economic attrition and sector contraction.

Saving a single live music venue from closure would equate to saving about 780 live music shows over the 4-year life of the program. This equated to 2,345 band gigs assuming three band line-ups. These are shows that would otherwise be lost.

Financial assisting and saving live music venues from closure would have a more significant and enduring impact than existing ad-hoc program funding grants.

This is further backed up by one of the recommendations of Music Victoria’s 2022 Victoria Live Music Census,

“That the state government extend the live music venue support grants to assist small venue operators to refurbish infrastructure and restore the viability of their operations and to reinvigorate our famous live music scene.”

Although this recommendation was directed at the Victorian State Government, it is equally relevant to Federal Government policy as the industry contributes annually in excess of $15.7 billion to the economy and sustains 60,000 jobs. The cultural damage being done to live music will be long lasting unless Government acts! Every $1 spent on live music leverages $3 in the economy.

https://livemusicoffice.com.au/research

The disproportionate tax burden.

Live Music Venues pay more tax, levies and licencing fees than almost any other sector of the economy. These taxes include the Wine Equalisation Tax, Alcohol Excise, Liquor License Fees, Land Tax (either directly or indirectly through rent), PAYG, Payroll Tax, Council Rates, Heath Licenses, Fire levies, GST, water and waste charges, and Company Tax. Although not a tax, live music venues and festivals are also responsible for paying OneMusic music copyright license fees.

Brewer costs of Beer. Source: The Age

The Government should consider that if licenced live music venues and festivals fail or cease operation, then this is enduring taxation revenue that the government would not otherwise raise.

A Proposal for an Alcohol Excise and Wine Equalisation Tax rebate scheme for hospitality-based Live Music Venues and Festivals to facilitate financial recovery from Covid-related economic damage.

This is a simple proposal that would be easy to implement by the Federal Government, would address struggling hospitality-based small to medium live music venues and licensed festivals, offset core costs and is likely to be revenue neutral.

This proposal is for a system of Alcohol Excise and Wine Equalisation Tax rebates for Live Music Venues and Festivals that hold liquor licenses. The Federal Government could create a rebate scheme on alcohol excise and the Wine Equalisation Tax (WET) currently collected by the Federal Government that would only be available to legitimate licensed grassroots live music venues and small live music festivals. It would not need to be permanent and would only need to last for a set recovery period (say 4 years) to assist these culturally vital organisations in recovering from the COVID lockdown's enduring financial impacts.

This would be achieved by targeting their critical financial problem of lack of profitability in the current post-COVID ramp-up recovery period when they are carrying the added weight of accumulated COVID debt generated during and after the lockdown whilst they are operating at substantially reduced income levels.

It could operate as follows:

• Eligibility would be specific to small to medium live music venues and music festivals under 10,000 capacity who hold both a valid liquor license and a OneMusic license covering live music royalty collection. Also, a documented history of staging live music or other performance activity, such as comedy, by presenting records of door reconciliation sheets, OneMusic live music reports or other proof of live music programming. The eligibility criteria for this rebate proposition are simple and have already been utilised by the Live Music Australia Grants.

• Alcohol excise is based on alcohol volumes, not sales value but can easily be accounted for by licensed Live music venues and festivals. The summation of alcohol purchase quantities organised by the Excise Tariff sub-item category could easily form the basis of the rebate calculations by using invoices for stock from the licensed Live music venues or festivals suppliers as the documentary evidence basis to a validate rebate claims.

• The WET is based on 29% of the wholesale price of wine so the invoiced amount from licensed live music venues or festivals suppliers would also suffice for a claim with invoices forming the evidence base.

Although there is an administrative overhead for this scheme, this is well outweighed by the beneficial financial impact of the proposal. The rough value of alcohol excise represents around 12% to 15% (25% COG of 46% wholesale excise) of a live music venue’s turnover. This would turbocharge the profitability of legitimate small to medium live music venues and festival bar sales. The increased cash flow would address the disproportionate operating costs caused by accumulated COVID lockdown debt and other disproportionate inflationary headwinds such as the massive increases in public liability insurance.

Although a direct injection of working capital into live music venues and festivals by the Government is an alternative through correctly targeted grants, this rebate proposition would equally work to specifically address live music venues and festivals’ future economic needs and underpin musician employment sustainability.

Implementation of this proposal by the Government would not require any new or amended legislation in parliament.

This proposal also aligns with the proposal by APRA/AMCOS for a Live music tax offset.

The report prepared by BIS Oxford Economics indicated that sector-wide support for live music would be as follows:

• The BISOE report found that a tax offset would incentivise existing live music venues to host more live performances and enable non-live music venues to host live music performances.

• A combined venue offset (of 5% of expenses for current live music venues and $12,000 in expenses for those not currently hosting) would boost the incomes of musicians and artists by $205 million per year with an additional 203,200 gigs.

• Such a combined offset could also support 7,400 direct and indirect jobs across entertainment, hospitality and tourism, and contribute $636 million per annum to Gross Value Added (GVA).

• The tax offset would boost annual industry GVA by between $310 million (i.e. an increase of approximately 10%) and $495 million (an increase of 15%); andcontribute to employment by between 3,600 (an increase of 10%) and 5,800 jobs (an increase of 15%), depending on the scenario modelled.

• A key motivation of the offsets is to encourage a healthy live performance ecosystem.

Apart from establishing a vibrant cultural life in Australia’s cities and rural centres and enhancing quality of life, supporting live music may also provide other long-term benefits such as enhancing Australian musical exports and soft power.

Although the APRA/AMCOS/BISOE report did not consider this Alcohol Excise and Wine Equalisation Tax rebate proposed, the report specifically did not specify the mechanics of how a tax offset for live music could be implemented.

https://www.apraamcos.com.au/about/supporting-the-industry/research-papers/economicimpact-of-tax-offsets-on-the-live-music-industry

https://assets.apraamcos.com.au/images/PDFs/About/APRA-OE-Report-Tax-IncentivesFINAL-REPORT.pdf

Precedents

There are precedents for such an initiative. The three examples given show that such an excise rebate scheme is not novel and is viable. Although the jurisdictions and scheme’s scope vary, they do offer benchmarks for the establishment and implementation of this proposal.

Further research would result in a more extensive list.

The Victorian Government established the Community Support Fund (CSF)

In 1991, The Victorian Government established the Community Support Fund (CSF). It is a trust fund governed by the Gambling Regulation Act 2003 to direct a portion of gaming revenue back to the community.

As prescribed by the legislation, the CSF receives 8.33 per cent of the revenue generated from the operation of electronic gaming machines in hotels. Any investment interest earned on the fund is retained and distributed for the community purposes set out in the legislation, including arts and tourist based initiates and funding of support or advancement of the community as determined by the Minister.

In 2019-20, the CSF received $112.23 million in revenue. This was lower than expected due to the COVID-related public health restrictions.

https://www.dtf.vic.gov.au/funds-programs-and-policies/community-support-fund

Other examples of alcohol excise rebates being redirected to live music include:

Texas Music Incubator Rebate Program (Austin, Texas, USA)

The Texas Music Incubator Rebate Program allows live music venues in Austin to receive up to $100,000 annually in liquor tax rebates. This program was established to provide financial relief to venues that significantly contribute to the live music scene. The Texas Music Office administers the program, which has a total funding of over $10 million for the next two years. To qualify, venues must meet specific criteria related to their operations and the promotion of live music.

https://www.austinmonitor.com/stories/2023/05/austin-music-venues-could-receive-100k-liquor-tax-rebates-from-new-state-incubator/

Proposed Liquor Tax Rebate Program (Cleveland, Ohio, USA)

In Cleveland, a proposal has been introduced to create a live music fund using liquor taxes collected from venues with a capacity of 3,000 people or less. If approved, this program would allow these venues to apply for rebates of up to $100,000 annually, with a total cap of $10 million for the initiative. This proposal aims to support the local music industry and enhance the cultural landscape of the region

https://www.wosu.org/2024-08-29/ohio-lawmakers-propose-liquor-taxes-to-support-live-music-venues-at-rock-hall

In conclusion

As Live Music Venues and Music Festival employ and contract a substantial proportion of Australian bands and musicians, Live Music Venues and Festivals are the important economic scaffold for musicians and music workers to sustain their careers. This is particularly true for emerging and developing musicians and bands.

Live music venues and festivals are the creative cauldron of the music industry's 60,000 jobs. The federal government has historically under-invested in contemporary live music compared to other industries of similar size, and even in terms of the shrinking arts funding pool.

As such, this proposal will likely be close to revenue neutral, representing a sound and wise investment by the Federal Government in the Live Music industry and the future of Australian musical culture.

Jon Perring

This article was part of a submission to the Standing Committee on Communications and the Arts into The challenges and opportunities within the Australian live music industry written by Jon Perring on the 12th of April 2024 and was also submitted to the Parliament of Australia’s enquiry into “Australia’s creative and cultural industries and institutions” titled “A proposal for an Alcohol Excise and Wine Equalisation Tax rebate scheme for Live Music Venues and Festivals to address the sectors future financial sustainability and COVID pandemic recovery” on the 1st October 2020 by Jon Perring.

An earlier version was also submitted as part of a submission to the National Cultural Policy (https://www.arts.gov.au/sites/default/files/documents/ncp0508-the-tote-hotel-and-baropen.pdf).

One of the great myths of the music industry is the notion of a sustainable arts practice. Of course, there are independent musicians who manage to earn a living in Australia (ABS suggests $6000). However, these individuals are the exception rather than the rule. The education sector, peak bodies and all levels of government have propagated the perhaps fictional notion of sustainable artists. When the COVID pandemic hit in March 2020, artists and musicians were one of the groups hardest hit, as was, for that matter, the entire extended music industry. The myth, at this point in time, was well and truly exposed by the reality of the quantum of lost work.

In a national survey by I Lost My Gig of over 3,000 professionals, 32,000 gigs and events were found to have been cancelled, equating to nearly $94M of lost income since July 1st this year. Of this lost revenue, survey results showed that 99% had no income protection or event cancellation insurance. (See “https://ilostmygig.net.au/”).

The deliberate design of JobKeeper by the Morison Government to exclude almost all practising artists and musicians entrenched the precarity of musicians and artists, with many leaving the sector.

As the Music Industry rebuilds in the shadow of the COVID era, it is vital that artists and musicians can earn a living. It is central that the music industry and governments address this contradiction as artists are the foundation of the Australian music industry that is built upon it.

The solutions to the problems of musician career and economic sustainability are not simple. An understanding of the contradictions, economic tensions between the stakeholders and the economic constraint of law is central to addressing and designing policy solutions.

It is often said that the Music Industry is the original gig economy. One of the great challenges is for a musician to cross over from being a successful amateur emerging musician to becoming a professional musician with a sustainable and hopefully secure career. This pathway is currently fraught with risk due to the many precarities of being a musician in Australia.

I believe bespoke, targeted Government initiatives could assist in easing these difficulties in career pathways.

Support for developing professional musicians.

The challenges faced by performance-based (gigging) musicians and non-gigging musicians who produce work, such as composers, producers and studio musicians, are different as the characteristics and makeup of their practice are different. As such, assistance from Government should tailor its assistance accordingly.

A Proposal for the Support for performance based developing professional musicians.

The following performance-based developing professional musician is proposed:

The Federal Government should consider co-funding an employment insurance scheme for practising musicians who perform

• more than 100 days a year and

• earn greater than a weekly income of $750 as musicians (averaged over a 12 week period).

The insurance could be drawn upon when a musician experiences a period when working as a performer is absent for a number of weeks. Such a system would assist in securing the careers of many professional musicians, most of whom experience periods where work is scares. Such a system could be modelled on the French system Régime salarié intermittent à employeurs multiples (system for intermittently salaried workers with multiple employers), taking into account its achievements, strengths and weaknesses.

The advantage of such a system is that it kicks in when a musician is most vulnerable. A practising musician who gigs on the weekend but holds down a day job can tailor and control their musical practice to their economic situation. They can pick and choose their gigs on their merits without entirely compromising their income. The problem currently comes when they turn professional and attempt to entirely exist on earnings from playing music. If they hit a dry run of gigs or lose money on a tour because a festival cancels or a venue unexpectedly closes, they can endure crippling debt with no prospect of secure future employment to service it. Such a system of employment insurance for eligible musicians outlined above would help mitigate the economic risks of turning professional. By underpinning the development of emerging musicians, the Government would be creating real, sustainable pathways for active, committed musicians to confidently peruse.

A Proposal for supporting non-performance-based emerging professional musicians such as composers, producers, and studio musicians.

The Federal and State Governments should consider establishing a number of fully funded multi-year creative fellowships dedicated to musicians. A number of about 100-200 would make a significant impact and also help many artists whose careers were derailed by the pandemic. Such a proposal should be open to all music genres, not just those educated in the university sector, such as classical musicians. Industry peers representing various genres should do the awarding of these fellowships. It is also important that a travel component be included in the stipend so these musicians can network and have the opportunity to perform and collaborate internationally. A similar proposal for the wider arts sector is presented in ‘Creativity in Crisis: Rebooting Australia’s Arts and Entertainment Sector’ (Eltham and Pennington, 2021, https://futurework.org.au/report/creativity-in-crisis-rebooting-australias-arts-and-entertainment-sector-after-covid/).

However, this proposal means there are gatekeepers which can create problems in itself. Clear guidelines would need to be established to ensure that these creative fellowships were not dominated by particular sectors or elites, such as university-trained musicians with experience in writing grants, instead of working musicians who have come up through a practice of gigging in small venues. Nevertheless, such a scheme would assist musicians who are project-based rather than those who regularly gig.

Both proposals have strengths and weaknesses. They could be both considered for implementation or one chosen over the other. Importantly, both proposals should be designed with tailored guidelines to complement each other by targeting the differing practices of musicians.

There is no single solution to the precarity of artists and musicians. The nature of both their cultural and economic contribution to Australian society means that government policy development and implementation to address fair career remuneration and sustainability requires a bespoke multifaceted and prioritised approach specific to the Live Music Sector.

Jon Perring

This article was originally part of a submission to the Standing Committee on Communications and the Arts into The challenges and opportunities within the Australian live music industry written by Jon Perring on the 12th of April 2024.

www.counternarrative.art

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