1. The responsible authority is seeking an enforcement order against the respondents who carry out an abrasive blasting business in a factory in an industrial area of Bairnsdale. It alleges that a condition of the permit[1] allowing the use of the land requires the permit holder to submit the report of an acoustic engineer to the responsible authority by 30 April 2010 and that this has not occurred. The report must confirm that noise emissions from the premises comply with SEPP N-1 noise limits. Failing compliance, the report must include recommendations that must be given effect to within 60 days of notice to the permit holder.
2. Nearby business owners, Mr and Mrs Phelan, made submissions in support of the application. They claim to be affected by noise from the business to a degree that it interferes with their day to day business activities and potentially their health.
3. The respondents submitted that they should not be required to commission an acoustic assessment since:
   • The land is within an industrial area remote from 'sensitive uses';
   • The condition of the permit was agreed to at the mediation by a consultant acting on the applicants' behalf who potentially acted beyond the scope of her instructions;
   • There is no scope for an effective assessment of noise emitted from the premises under SEPP N-1 methodology since this policy does not cover industrial noise in an industrial context;
   • A personal 'vendetta' underlies the application;
   • Relevant authorities including the EPA and WorkSafe have advised that the conduct of the premises is acceptable and this business should not be subject to more rigorous standards than other similar uses in the area.

1. We have no doubt that the permit holder has failed to comply with the requirement in condition 7 of the planning permit to submit an acoustic report by the end of April 2010. Similarly, we find that the permit has been acted upon in that the use has been operating under its auspices for a number of months, albeit without full compliance of the permit conditions.
2. Having established a breach of the permit, the issue is then whether (and how) we should exercise our discretion on the facts of this case.
3. There may well be personal tensions between the respondents and the Phelans as interested people in this application. However, our role is to consider this matter independently and with a focus on the substance of the issues before us.
4. We are not convinced that the permit condition is inappropriate in principle, although we note that, in its absence, the use of the land would not ordinarily be regulated by the provisions of SEPP N-1.
5. We recognise that condition 7 of the permit applies a more stringent noise emission standard to this land use compared with other nearby industrial activities. However, this was the outcome of a mediated settlement between the applicants, the Phelans and the Responsible Authority. By acting on the permit and commencing the use, the permit holder has taken the benefit of the permission granted and therefore needs to adhere to requirements of the permit.
6. As we explained at the hearing, it is possible that other authorities such as the EPA and WorkSafe consider the operations of the business to be acceptable under other regulations or policies. We do not anticipate that either of these authorities are obliged to consider noise emissions against SEPP N-1 measurements.[2] By contrast, the permit obliges the council as the responsible authority to undertake this enquiry.
7. The Grand-Courts misconceive the application of SEPP N-1. As we explained in the hearing, the purpose of this policy is not only to take account of and protect the amenity of sensitive land uses such as residential neighbourhoods. The procedures that apply under SEPP N-1 take account of all surrounding land uses and adjust noise limits accordingly. In this way, the amenity levels applicable to a wider range of land uses can be accounted for and protected. This includes commercial and industrial land.
8. We are conscious that Mr Grand-Court advised that he had requested the responsible authority to fix appropriate noise limits for his business and said he would abide by these. In reality, this council does not have the expertise at hand to undertake the assessment leading to the setting of such noise limits. Rather, this is a fundamental outcome of the assessment called for by condition 7 and is necessarily at the permit holder's expense.
9. For these reasons we consider that it is appropriate that compliance with Condition 7 of the permit is required and an assessment of noise limits and impacts from the Grand-Court's premises are assessed in accordance with SEPP N-1.
10. We consider that a staggered order should be provided for in that an acoustic assessment should be carried out and a report submitted to the responsible authority by late February 2011. If the acoustic engineer recommends any changes to operating procedures or acoustic works to the building/land to ensure compliance, the matter should return to the Tribunal to consider whether these are appropriate and what timeframe should be imposed.

[1] Issued in January 2010 at the direction of the Tribunal following successful mediation.

[2] However we do note that under the Interim Guidelines for Control of Noise in Country Victoria (EPA Guideline N3/89) SEPP N-1 is to be applied where background noise levels are comparable to Metropolitan Melbourne. Arguably SEPP N-1 may apply to this industrial estate.