toni johnston tj: 18/46/2-104: #1960145 · noise nuisance at schooner road boat ramp trinity park...

352

Agenda – Planning & Environment Committee 8/4/09 - #2002546

PLANNING & ENVIRONMENT COMMITTEE

8 APRIL 2009

20 NOISE NUISANCE AT SCHOONER ROAD BOAT RAMP TRINITY PARK Toni Johnston TJ: 18/46/2-104: #1960145

RECOMMENDATION: 1. That Council notes that upon signing a negotiated Memorandum of

Understanding with Queensland Transport, Council will regulate the use on the Schooner Road boat ramp and boating activities on the canal through measures such as:

● Placing surveillance equipment on the ramp; or ● Erect regulatory signage pertaining to behaviour on the ramp; or ● Implement a compliance inspection program; or ● Making a new or strengthening current Local Law 8 to include such

provisions as the operation of a boat in the immediate vicinity of a boat ramp would not be considered an environmental noise nuisance and is an exempt activity.

2. That currently, Council has no authority to conduct any enforcement

activities on the boat ramp until the negotiated agreement with QT and CRC is signed.

_____________________________________________________________________

INTRODUCTION: Since early 2007 Council has received noise complaints regarding the Schooner Road boat ramp, located at the end of Schooner Road, Trinity Park. The noise complaints relate to the use of the boat ramp, such as the noise from boat engines, the vehicles loading boats into the canal, general noise from people using the ramp and illegal parking of trailers along Schooner Road. Complaints have also been received regarding noise from boats on the canal in front of the residents in Riverside Parade. This report will discuss the past and present regulatory tools available to Council to manage noise generated on a boat ramp and on a canal. The report will endeavour to identify measures Council can implement to mitigate future noise nuisance complaints.

353


LOCATION

BACKGROUND: The boat ramp was recognized in the original application for the Blue Water development, and approved by the former Department of Environment in accordance with the now repealed Harbours Act 1955. The plans of the boat ramp were sanctioned pursuant to Section 86 of the Harbours Act on the 10 November 1997 subject to conditions specified in a letter dated 10 November 1997 from the Department of Environment. A copy of the plans and supporting correspondence was forwarded to Council at the time. The ramp was constructed in 2004 as part of the operational works for the Bluewater development. Council started receiving complaints regarding noise at the boat ramp in January 2007. In July 2007 Council received a petition from 6 residents in Riverside Parade, located adjacent to the Schooner Road boat ramp and the Bluewater canal development. A further 3 petitions were received; however it is uncertain where the signatories reside. The petition stated that noise nuisance from the boat ramp was in contravention of Section 6ZF of the repealed Environmental Protection Regulation 1998 (the Regulation). Section 6ZF prescribes specific times for operating a power boat engine at a premises. Administration of this section of the Regulation was, at the time, devolved to Cairns Regional Council to administer. The petition requested Council enforce the legislation by limiting the access to the boat ramp to the acceptable hours prescribed in the legislation, being;

354


6ZF Operating power boat engine at premises (1) A person must not at a premises operate a power boat engine in a way that makes

audible noise or causes audible noise to be made—

(a) on a Sunday or public holiday, before 8a.m. or after 6.30p.m; or

(b) on a Saturday or business day, before 7a.m. or after 7p.m. Maximum penalty—20 penalty units. (2) An occupier of premises must not allow a power boat engine to be operated at the

premises in a way that makes audible noise or causes audible noise to be made during a period mentioned in subsection (1).

Maximum penalty—20 penalty units. (3) In this section—

operate, a power boat engine, includes flushing the engine. Correspondence was received in addition to the petition which stated the following reasons why noise was a nuisance: ● Noise nuisance late at night, middle of the night and early morning; ● No signage advising people that they were accessing a waterway adjacent to

private homes and noise implications; ● The running (dry) of outboard motors revving loudly in the middle of the night; ● Clanging of anchors, chains and boating equipment at all hours; ● Spinning car wheels when towing boat trailers up the ramp late at night; ● Leaving car stereos systems on loud when car doors open on the ramp; and ● Swearing, loud and obnoxious language whilst launching and retrieving boats In response to these concerns, Council sought legal advice from King and Company Solicitors as to which government body would be responsible for enforcing the above section of the Regulation. King and Company response clearly indicated that the administering authority for Section 6ZF was the Environmental Protection Agency and Council did not have any jurisdiction to enforce the legislation. The complainant was advised of this outcome. Council held a meeting with senior compliance officers from the Environmental Protection Agency (EPA) to ascertain the agency’s response to this matter. It was determined at the meeting that the ownership of the boat ramp needed to be identified as the Environmental Protection Agency believed that the enforcement of Section 6ZF did not lie with the State. Council received further noise complaints and decided to hold a meeting with the principal spokesperson for the complainants and with Queensland Police and officers representing the EPA. At the meeting, further issues were raised by the complainant, being:

355


● Noise from reversing beepers on trailers ● People urinating in public ● Boat ramp not easily accessible due to boat trailers illegally parked ● Saltwater on roadway The outcome of this meeting was: ● Noise from vehicles on a roadway, urinating in public and obnoxious behaviour

was to be reported to the Police ● Council officers would inspect unlawful parking of trailers and issue fines where

appropriate ● Council to ascertain who the owner of the boat ramp was prior to any further action

being taken in regard to the noise nuisance To determine ownership of the boat ramp, Council wrote several letters to the local branch of Queensland Transport requesting clarification of this matter. Council did not receive a response from the local office, so it was decided that Council through the CEO write to the Minister for Transport, Trade, Employment and Industrial Relations for clarification. Council received a response from the Hon John Mickel MP Minister for Transport, Trade, Employment and Industrial Relations, surmising that the regulation of noise in this instance would be the responsibility of the Environmental Protection Agency. Furthermore, the minister identified that currently there is no formal agreement between Queensland Transport (QT) and Council in respect to the management and maintenance of the boat ramp, and suggested Council take action to formalise this agreement. Council advised the complaint of the minister’s findings. Furthermore Council convened a meeting late in 2008 with a representative of QT to discuss the current noise complaints and the management and maintenance of the boat ramp. The outcome of this meeting was: ● Currently the boat ramp is located on Unallocated State Land (USL) and is owned

by Queensland Transport ● Environmental Protection Act 1994 and Environmental Protection Regulation 2008

are administered by the EPA and QT has no head of power to administer this legislation.

● QT forwarded Council correspondence and documentation: Memorandum of

Understanding: Queensland Transport and the Local Government of Queensland Association and the Protocol establishing roles and responsibilities of the State government and Local government in the Queensland System of Local Government (Appendix 1).

● QT bought to Council’s attention that should the Memorandum of Understanding

(MoU) be signed then the boat ramp cannot be closed as per Section 4a of the Terms and Conditions:

356


‘If a boat ramp, it shall be available at all times for use by the public without charge for launching and retrieving of trailer-borne private recreational vehicles” .

Since the meeting, QT has forwarded correspondence (Appendix 1) recommending Council enter the agreement for managing and maintaining the boat ramp. Legislative and devolution changes In January 2009, the devolved responsibilities of the Environmental Protection Regulation 2008 changed dramatically with Local Government becoming responsible for environmental nuisances and noise offences occurring on both residential and commercial land. This has now changed the potential regulation of the Schooner Road Boat ramp. Council again contacted King and Company for advice regarding the new environmental nuisance provisions. The following table identifies management options for regulating noise on the Schooner Road Boat ramp and in the adjacent canal based on King and Companies advice and current legislative requirements.

357


Tables one (1) and Two (2) outlines management options for the regulation of noise on the adjacent canal and on Schooner Road Boat ramp and on the Table 1. Regulation of noise on the canal

Enforcement Statute Positive Outcomes Negative Outcomes Environmental Protection Act 1994 440 Offence of causing environmental nuisance (1) A person must not wilfully and unlawfully cause an environmental nuisance. (2) A person must not unlawfully cause an environmental nuisance.

Direction Notice enforcement tool. Failure to comply with a Direction Notice is $1000 fine.

• No on the spot penalty provision • Extremely difficult to regulate as offender

would be required to be identified twice before a penalty could be incurred.

• Direction notice subject to comprehensive

criteria prior to issuing. Environmental Protection Act 1994 440Z Power boat sports in waterway (1) A person must not use a power boat, or permit the use of a power boat, in a waterway for a power boat sport if the use makes audible noise for the same affected building for more than a continuous period of 2 minutes— (a) on a business day or Saturday, before 7a.m. or after 7p.m; or (b) on any other day, before 8a.m. or after 6.30p.m. (2) In this section— power boat sport means— (a) a sport in which a person is towed by a line attached to a power boat, including, for example, a person water skiing or riding on a toboggan or tube; or (b) operating a jet ski or other power-driven personal watercraft, other than for fishing. waterway means any of the following— (a) a creek, river, stream or watercourse; (b) an inlet of the sea into which a creek, river, stream or watercourse flows; (c) a dam or weir.

On the spot penalty of $1000. • Extremely difficult to enforce, requiring significant resources (such as a boat) and Officers requiring to be on call 24/7days.

• This offence does not apply when fishing. • Canal used to access open ocean by fishing

boats.

358


Table 2. Regulation of noise on the Boat ramp

Enforcement Statute Positive Outcomes Negative Outcomes Environmental Protection Act 1994 440ZA Operating a powerboat at a premises – Before 7.00am or after 7.00pm on a business day or Saturday; or Any other day before 8.00am or after 6.3pm

• On the spot penalty of $1000. • Can enforce boat engine noise on boat

ramp.

• Cannot place infrastructure (such as boom gates) to regulate the use if the MoU is signed with Queensland Transport (QT). Conditions of the MoU state that the Boat ramp must be available for use 24 Hours / 7 days a week.

• Operational cost to Council to regulate

activities through inspections, response to complaints and maybe a requirement to regulate after hours.

Local Law 8 Jetties, Barge Loading Ramps and Boat ramps Part 6 Enforcement - Official Signs 1) The Council may by official sign displayed at any place near or on any jetty, barge loading ramp or boat ramp: (b) regulate the use thereof by the public and the conduct of the public thereon; and (e) close or cause to be closed any jetty, barge loading ramp or boat ramp. Local Law 8 Jetties, Barge Loading Ramps and Boat ramps Part 4 Conduct Of Persons 16) A person must not, upon any jetty, barge loading ramp or boat ramp: (a) behave in a riotous, disorderly, indecent, offensive, threatening or insulting manner; or (b) sing any obscene song or ballad or write or draw any indecent or obscene work, figure or representations; or (c) use any profane indecent or obscene language; or (d) use any threatening, abusive or insulting words to any other person.

• On the spot penalty of $150. • Regulate use and behaviour. • Could close ramp at certain times

• The MoU with QT would need to be sanctioned, however the terms and conditions pertaining to operational times of the ramp would need to be negotiated.

• Cost to council to implement infrastructure

such as signage, boom gates and camera’s • Potential for infrastructure to be damaged

with people trying to access ramp if closed. • Could receive negative response from

recreational fisherman / community. • Safety concerns if the ramp was closed,

fisherman trying to return may not be able to access ramp and could potentially be stranded.

• Tide times often dictate use of boat ramps,

therefore maybe difficult to decide reasonable hours of use.

359


Enforcement Statute Positive Outcomes Negative Outcomes

Transport Infrastructure (Public Marine Facilities) Regulation 2000. Close the boat ramp

• No further complaints

• Council would need to request Queensland Transport to make this decision.

• Not many alternative boat ramp sites in the

Northern Beaches area • Viewed negatively by recreational fishing

clubs and general public currently using the ramp

Local Law 8 Jetties, Barge Loading Ramps and Boat ramps Update the local law

• Can re-write to include noise associated with the use of the boat ramp (in a waterway).

• Long time frame for implementation of a local law

360


COMMENT: To date, Council has received 18 complaints in the past two (2) years from one resident allegedly acting on behalf of other residents of Riverside Parade regarding noise at the Schooner Road boat ramp. Council has not received any further independent complaints regarding this matter. Environmental Protection has received two (2) noise complaints occurring on the Yorkeys Knob boat ramp in the past 5 years. The regulation of noise emitted on the boat ramp can be regulated through provisions of the Environmental Protection Act 1994 (the Act) and Local Law 8. However, these provisions cannot be implemented unless the terms and conditions in the MoU are negotiated with Queensland Transport. Only then may Council regulate the use of the ramp through infrastructure, regulatory signage and partial closures. In addition, significant resources need to be dedicated to regulating activities on the boat ramp, as the options for Council would be: ● Placing signage on the ramp indicating conduct and possible closure times; and ● Placing video surveillance and associated lighting and audio to regulate activities;

and ● Environmental Health Officers personally being at the boat ramp to enforce noise

provision of the Act; and ● Local Laws Officers personally being at the boat ramp to enforce noise provision

of the Local Law; and ● Reactive complaint response. Council is yet to receive a formal request to sign a Memorandum of Understanding from Queensland Transport regarding the maintenance and management of Schooner Road boat ramp. The regulation of noise on the canal under the provisions of environmental nuisance is extremely difficult due to the enforcement process (requiring a complete assessment of the situation prior to a Direction Notice being issued and then issuing a fine for not complying with a Direction Notice). Regulating peoples activities in boats situated on the canal poses significant logistical problems. Enforcing the provision of power boats sports in a waterway also proves extremely difficult and in most cases this provision would not apply as the boats mainly launched and located in the canal are used for fishing, not power boat sporting activities.

361


With the changes to the Act, Council now has the opportunity to create local laws which assist in the administration and management of environmental nuisance. This new provision is intended to assist Council’s by offering a range of enforcement regimes: a. Have no local law in place and operate completely under the regime identified in

the Act; or

b. Have a hybrid system by having a local law in place which has alternative noise standards but no offence provisions so that the enforcement tool offence provisions contained in the Act will apply; or

c. Have a local law which partly or comprehensively regulates environmental

nuisance and which applies in place of the enforcement regime contained in the Act.

The major concern with modifying or creating Local Laws is the time frame for their implementation. It is Cairns Regional Council’s intention to review current local laws and in particular the bringing together of the former DSC and CCC Local Laws, but the proposed completion of this work is likely to be several years away. Currently the regulatory responsibilities for noise at the boat ramp are represented in Table 3 below: Table 3. Current Regulation Responsibilities Noise Issue Regulatory Body Noise on Schooner Road Qld Police Noise on the boat ramp – engine noise Queensland Transport Noise on the boat ramp – noise nuisance Queensland Transport Signage advising people that they were accessing a waterway backing onto private homes and noise implications

Queensland Transport

Spinning car wheels when towing boat trailers up the ramp late at night

Qld Police

Leaving car stereos systems on loud when car doors open on the ramp

Qld Police

Swearing, loud and obnoxious language whilst launching and retrieving boats

Qld Police

Clanging of anchors, chains and boating equipment Queensland Transport Illegal parking of boat trailers Council Noise on canal - powerboat noise Council Noise on canal – environmental nuisance Council

362


CONSIDERATIONS: Corporate and Operational Plans: In accordance the Transport and Mobility section Council’s Corporate Plan – Future Cairns, Council has been committed to action under the Cairns Integrated Public Transport Plan with one of the priorities being the improvement of support infrastructure. Council has a commitment to provide boat ramps to the community as recreational fishing is an inherent part of living in far north Queensland. The regulation and enforcement of Local Laws is considered in Environmental Assessment operational planning. Should Council decide to regulate the noise from Schooner Road in accordance with the provisions of Local Law 8, this would effect the current operational planning for the Local Laws division of Environmental Assessment as allowance for after-hours / evening work would need to be operationally planned. Statutory: ● Local Law 8 Barges, Loading Ramps and Boat ramps ● Environmental Protection Act 1994 ● Environmental Protection Regulation 2008 ● Transport Infrastructure (Public Marine Facilities) Regulation 2000 Policy: Council currently does not have a policy relating to noise on boat ramps. Financial and Risk: Regulating the use on the boat ramp and on the canal through a negotiated MoU with QT, makes available enforcement and regulatory tools such as signage, boom gates and Council Officers inspections, poses a significant increase in resource allocation for Environmental Assessment’s 09/10 budget. It is proposed that the Local Laws, Environmental Protection and Environmental Health Officers would be required to attend to these complaints as they have separate delegations to enforce each statute. Furthermore, regulation activities would involve after hours work with a provision for overtime / on call being needed to be considered in the budget. Should the regulation of activities on the canal be required, Council would need to obtain a vessel, which not only involves purchasing but on going costs such as mooring, maintenance etc. Boat licences would need to be acquired; safe work procedures implemented and a minimum of two Officers would be required for operating the vessel. As outlined below, if Council chooses to sign a negotiated MoU with QT, the recommended regulatory costs would be as follows: Temporary or Permanent surveillance camera $20 000

363


Regulatory signage $ 2 000 Implement a compliance inspection program $10 000 Response to complaints (number of complaints x time resolved x rate per hour) $ 5 000 Total approximate cost $38 000 Sustainability: The provision for boat ramps in the Cairns Regional Council is an essential community service that Council and Queensland Transport must provide.

CONSULTATION: Manager Infrastructure Management Manager Environmental Assessment Queensland Transport Environmental Protection Agency General Manager Planning and Environment

OPTIONS: Option 1: Council does not sign the Memorandum of Understanding with

Queensland Transport. Council would not have any power to enforce activities on the boat ramp, only having jurisdiction to enforce activities on the canal being:

Noise on the canal

● powerboat noise (fishing vessels being exempt) ● environmental nuisance (very difficult to enforce) ● Making a new or strengthening current Local Law 8 to include

such provisions as the operation of a boat in the immediate vicinity of a boat ramp would not be considered an environmental noise nuisance and is an exempt activity.

Option 2: Council sign a negotiated Memorandum of Understanding with

Queensland Transport. Regulation would include:

Noise on the boat ramp ● Placing surveillance equipment on the ramp ● Erect regulatory signage pertaining to behaviour on the ramp ● Implement a compliance inspection program

364


Noise on the canal ● Making a new or strengthening current Local Law 8 to include

such provisions as the operation of a boat in the immediate vicinity of a boat ramp would not be considered an environmental noise nuisance and is an exempt activity.

This option would cost Council approximately $40 000 to implement. Option 3: Council request Queensland Transport remove the boat ramp from the current location and relocate in another area.

CONCLUSION: It is considered that Option 2 is the preferred Council action, however until such time as a negotiated MoU has been signed between QT and Cairns Regional Council, Council has no jurisdiction to undertake the suggested enforcement activities on the boat ramp and is limited to regulating activities on the canal adjacent to the Schooner Road boat ramp.

ATTACHMENTS: #1955118 Letter from QLD transport TONI JOHNSTON Team Leader Environmental Protection LAURIE PHIPPS Manager Planning and Environment

365


366


367


368


369


370


371


372


373


374


375


376


377


378


379


380


381


382


383


384


385


386


387


388


389


390


391


392


393


394


395


toni johnston tj: 18/46/2-104: #1960145 · noise nuisance at schooner road boat ramp trinity park...

Documents