An overview of the state of play in managing live music sound in vibrant urban environments through the lens of the case study of the Night Cat in Fitzroy. By Jon Perring - May 2025
Recently, the corner of Johnson St and Brunswick St has been experiencing intense residential development pressures, which in turn has been pressure-testing the Agent of Change planning rules and the environmental noise regulations. It makes an interesting case study.
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
The Rainbow Hotel, Fitzroy,
The Railway Hotel, North Fitzroy
The Pinnacle North Fitzroy
The Tramways, North Fitzroy
The Standard Hotel Fitzroy
The Gem Hotel, Collingwood
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 3rd 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 3rd 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 3rd 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.
[14] Fortitude Valley neighbourhood plan code. https://cityplan.brisbane.qld.gov.au/eplan/rules/0/77/0/0/0/247