Wind farm noise: proposed new regulations

The Victorian Government is currently seeking feedback on three proposed options for regulating wind farm noise under the new Environment Protection Act 2017 (due to commence on 1 July 2021) (new EP Act). The proposed changes come as Supreme Court disputes continue over South Gippsland Shire Council’s finding that the Bald Hills Wind Farm was causing statutory noise nuisance under the Public Health & Wellbeing Act 2008 (PHW Act)^[1], despite the fact that the wind farm was complying with its Planning Permit conditions and relevant noise standards.

The intention of the proposed changes is to provide certainty for all parties and to reduce regulatory uncertainty, but the devil, as always, is in the detail. Planning & Environment Partner Meg Lee explains the options being considered in the regulatory reform proposal.

What options are being considered?

Three options are discussed in the Regulatory Impact Statement and these are open for consultation via the Engage Victoria website:

• The ‘base case’ – being no additional regulation, but relying instead on a new general environmental duty within the new EP Act and the existing planning permit framework;
• Option 1: new wind farm regulations under the new EP Act that set specific requirements for compliance; and
• Option 2: new permission, which would see wind farms needing to obtain not just a planning approval but a separate permission from the Environment Protection Authority (EPA) to produce wind turbine noise within set limits.

With all options, the intention is to also amend the PHW Act to exclude noise from wind farm turbines from the nuisance provisions in that Act to avoid duplication and overlap in regulatory control and also to avoid the confusing legal issues that have arisen in the Bald Hills cases explained briefly below. The Bald Hills cases are cited in the Regulatory Impact Statement as examples of the significant legal costs, uncertainty and lack of trust in regulations.

The finding by South Gippsland Shire Council that a nuisance under the PHW Act had been caused (albeit intermittently) was made following consideration of acoustic material from the wind farm operator as well as a separate report commissioned by the Council. The operator of the wind farm sought orders in the Supreme Court to quash the Council’s finding on the basis of several alleged legal errors, including a failure to adequately consider acoustic materials submitted by the operator.

While the operator failed in this action^[2] and specifically failed to demonstrate that the Council had not appropriately considered the acoustic reports, Justice Richards found that: ‘The Council’s finding that a nuisance existed was the premise for its decision to do no more than advise the complainants of methods for settling the matter privately. Once it had done that, the effect of its finding – other than on Bald Hills’ reputation – was spent.’ This was the basis for finding that the Court had no power to quash the decision as the decision had no further effect.

In a separate legal action, the complainants at Bald Hills are now suing the wind farm and seeking compensation in the Supreme Court for alleged health and financial impacts arising from the wind farm noise emissions. As part of the claim, the claimants allege that the wind farm has failed to comply with its planning permit. That case is due to be heard in September 2021.

The Bald Hills case serves to demonstrate the complexity of wind farm noise regulation and the difficulty of proof. The pending action for damages arising from the noise emissions will similarly have causation difficulties, given there is no accepted mainstream medical evidence of so-called wind farm syndrome, which is alleged to be caused by low-frequency turbine noise^[3]. Indeed, most recently in a South Australian case^[4], the Full Court found that the Environment Resources & Development Court had not erred in law and had had due regard but, ‘correctly, gave very little weight, to the subjective perceptions and accounts of those residents because there was no evidence that their experiences had been medically validated or scientifically assessed against noise studies generally, or studies of wind farms in particular.’

Base Case: new duties under the new EP Act

From 1 July 2021, the base case for wind farms will change regardless of any additional new regulations specific to wind farms. This is because the new EP Act includes a ‘general environmental duty’ (GED) which requires all Victorians (not just businesses) to minimise the risk of harm to human health and the environment arising from their pollution and waste, including noise, as far as is reasonably practicable. The current EP Act does not regulate impacts to human health, nor does it provide for third party enforcement.

The new GED therefore will apply to wind farms and require positive steps (as far as is reasonably practicable) to minimise the risk of harm arising from noise emissions to both human health and the environment. Wind farm opponents and neighbours claiming that their health is impacted by noise emissions will be able to take legal action to enforce the GED if the EPA fails to do so after a request. In bringing any such case for breach of the duty, the complainants will not be required to show that harm has in fact been caused, but rather that the operator failed to minimise the risk of harm as far as is reasonably practicable.

As such, the so-called ‘base case’ is actually a significant change for wind farm operators and may arguably be sufficient to address any perceived gap in regulation of wind farm noise.

Option 1: wind farm noise regulations

The Exposure Draft of the Environment Protection Amendment Regulations 2021 sets out what is effectively a new Division to be inserted into the main Regulations. The proposed new framework includes:

• A new duty on operators (r.131B(1)) to ensure that wind turbine noise emissions comply with the requirements of the ‘relevant noise standard’.
• The ‘relevant standard’ is defined in new regulation 131A for wind farms that commence operation prior to 1 July 2021 as being either:
  • The New Zealand Standard (NZS) 6808:1998, if the planning permit or other authorising document under the Planning and Environment Act 1987 for the facility requires compliance with that standard or does not specify a noise standard; or
  • NZS 6808:2010, if the planning permit or other authorising document under the Planning and Environment Act 1987 for the facility requires compliance with that standard; or
  • Any other standard specified in the approval documentation.
• A new definition of ‘unreasonable noise’ for the purposes of paragraph (b) of the definition of unreasonable noise in section 3(1) of the new EP Act namely, that ‘wind turbine noise is unreasonable noise if it exceeds the noise limits determined in accordance with the relevant noise standard.’ This has the effect of bringing wind farms under the new offence in the new EP Act at section 166 that a person must not emit an unreasonable noise nor permit an unreasonable noise to be emitted.
• A new requirement (r.131B(2)) to ensure that noise emissions are managed and reviewed in accordance with the new framework set out in the Regulations (which arguably duplicates many existing requirements in Planning Permits for wind farms) including:
  • Post-construction and 5-yearly noise assessments – 131C and 131F – Conducting a post-construction noise assessment within 12 months of the commencement of operation of the facility, which must be conducted in accordance with NZS 6808:2010 and must demonstrate whether or not the facility complies with the noise limits determined under that standard and which must be verified by an environmental auditor. A noise assessment must then be done every five years following operation;
  • Noise Management Plans – 131D – From 1 January 2022, operators must prepare and implement a noise management plan and provide it to the EPA for review. The plan must include procedures for identifying and assessing and controlling risks of harm to human health and the environment arising from noise emissions as well as procedures for assessing compliance and addressing any complaints and procedures for reducing emissions in the event of any non-compliance; and
  • Annual Statements – 131E – From 30 June 2022, operators must provide an Annual Statement to the EPA within four months of the end of each financial year that sets out details of any complaints and how these were addressed; evidence that turbine operating modes comply with any restrictions imposed in the planning permission; details of maintenance activities and any noise remediation actions taken; and evidence demonstrating the facility has not contravened the ‘relevant noise standard’.

Option 2: new permission for wind farms

The third option considered in the Regulatory Impact Statement is to require wind farm operators to obtain a permit through the new EP Act permissions regime. The proposal is for the new EPA permit system to exist alongside the permits already required under the Planning and Environment Act 1987.

The proposal is for Permits to be valid for up to five years, after which the operator can apply (on multiple occasions) for a renewal. This renewal would extend the permit for a further five-year period and would require submission of data to demonstrate ongoing compliance.

The above requirements from the regulations are proposed to form part of the permit system and to be requirements of both Option 1 and 2, presumably by way of permit conditions requiring the same matters as covered in the Regulations.

The permit system is seen to provide certainty given the new provision at section 62 of the new EP Act that states that:

‘A person is taken to perform a duty or satisfy an obligation under this Act if-

(a) the person is the holder of a permission that provides for how the person is to perform the duty or satisfy the obligation; and

(b) the person complies with the permission to the extent that the permission provides for performing the duty or satisfying the obligation.’

Consideration of options

There are no details of any proposed consequential amendment to the Planning & Environment Act 1987 available at this point. Without such amendments, the draft Regulations will lead to significant overlap and potentially inconsistent assessment, reporting and enforcement requirements applying under both regimes. This will require urgent attention if the Regulations are to proceed in order to avoid overlap, inconsistencies and unnecessary burdens.

Further, while the ‘relevant noise standard’ definition allows for the fact that some wind farms have been designed and constructed and operate pursuant to the 1998 New Zealand Standard, the requirements of the post-construction noise assessment appear to only contemplate assessment against the 2010 New Zealand Standard. This requires clarification and reconsideration to avoid confusion and ensure wind farms are not having to assess under two different standards.  Importantly, one of the key differences between the two standards is the need to consider ‘high amenity areas’ under the 2010 Standard. In the context of recent Victorian Civil and Administrative Tribunal (VCAT) decisions^[5] expressing a view that the high amenity noise limit should apply to non-stakeholder dwellings in the Farming Zone, the need to assess compliance under this Standard will potentially have significant implications for compliance at many wind farms.    

The Regulatory Impact Statement proposes that under both Options 1 and 2, the EPA would become the primary regulator of wind farm noise, and both options would require a revision to the nuisance framework under the PHW Act and the role of councils in compliance and enforcement under the Planning regime ‘may’ be reconsidered in future. In our view, this consideration is vital at the time of introducing the proposed regulations in order to avoid unnecessary duplication, regulatory burden and legal costs.

The Regulatory Impact Statement sets out an analysis of expected costs of each option. The assumptions around costs of compliance for industry and the risks of legal disputes (it predicts a 30% decrease) are potentially questionable and should be considered by industry players in making a submission.

Ultimately, the analysis in the Regulatory Impact Statement was that Option 1 (new direct regulation) is preferred to the Base Case (status quo) and to Option 2 (Permit system). The view of the paper is that Option 1 provides greater certainty for industry as it clearly outlines operator obligations in regulations and does not require the operator to regularly seek permit renewals, as in Option 2. The paper also found that Option 1 delivers benefits above the Base Case in terms of avoided costs incurred in managing complaints and legal disputes, however as noted above, this relies on many different assumptions as to costs associated with compliance and disputes which may be too conservative.

Making a submission

Submissions are open until 28 February 2021 and can be lodged via the Engage Victoria website.

We encourage those involved in wind farm operations to review the material and to raise any issues of concern so that the regulations, if passed, operate effectively, provide certainty and fairness, and do not lead to any unnecessary regulatory burden on the important renewable energy sector.

Please get in touch if you wish to discuss making a submission.

 

[1] The Resolution of 27 March 2019 further recorded the Council’s opinion, under s 62(3)(b) of the PHW Act, that the matter was better settled privately, and identified several methods available for doing so.

[2] Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council [2020] VSC 512

[3] See Chiles, S (2020) A new wind farm noise standard for New Zealand NZS 6808:2010 (Proceedings of 20th International Congress on Acoustics, ICA 2010, Conference Paper 2010) (link accessed 8 February 2021).

[4] Stirling McGregor v Tilt Renewables Australia Pty Ltd & Ors [2019] SASCFC 142 (15 November 2019).

[5] See Naroghid Wind Farm Pty Ltd v Minister for Planning [2019] VCAT 800 (3 June 2019).  The discussion on this point is contrary to the finding in Cherry Tree Wind Farm Pty Ltd v Mitchell SC & Ors (Includes Summary) (Red Dot) [2013] VCAT 521 that the high amenity noise limit under NZS6808:2010 does not apply in the Farming Zone.