Wind farms face “significant change” to turbine noise rules in Victoria

Wind energy projects in Victoria could soon be required to apply for permits to produce turbine noise within set limits, as one of three options being proposed by the state government in addition to a tightening of environmental responsibilities for wind farm operators.

The Labor Andrews government has called for feedback on three options for regulating wind farm noise as part of an amended Environmental Protection Act that will introduce a “general environmental duty” and “unreasonable noise” provisions.

“A new regulatory framework is required to align the approach to managing wind farm noise with the [amended] Act,” the government said on its Engage Victoria website this week.

“Clear and consistent wind farm noise regulation is needed to provide certainty to industry and confidence for communities.”

The three options being proposed by the government – and assessed in a 78-page regulatory impact statement put together by Deloitte – include:

1. No additional regulation and instead rely on general provisions within the new Environment Protection Act;

2. Direct regulation that sets specific requirements for compliance; or

3. Regulation requiring permission from the Environment Protection Authority (EPA) to produce wind turbine noise within set limits.

But even putting the proposed additional regulations aside, the “base case” for wind farms will change regardless, as part of the amended Environment Act, which is due to come into play on July 1.

This is because the amended Act includes a “general environmental duty” (GED) requiring all Victorians to minimise the risk of harm to human health and the environment from their pollution and waste, including noise, as far as is reasonably practicable.

As legal blog Lexology explains it, this means 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,” Lex says.

“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.”

Lexology’s Hall & Wilcox note that with all options, the intention is to also amend the Public Health and Wellbeing Act to exclude noise from wind farm turbines from the nuisance provisions, to avoid duplication and overlap in regulatory control, as well as“confusing legal issues” such as those surrounding the Bald Hills wind farm in the state’s south east.

As RenewEconomy has reported, the Bald Hills wind farm failed in its August Supreme Court bid to quash two 2019 local council resolutions that agreed the 106MW project was causing a nuisance to some of its neighbours in Tarwin Lower.

The findings of the Judicial Review, sought by Bald Hills to challenge the South Gippsland Shire Council’s decision-making process, have zero legal consequences for Bald Hills or its owners.

But an upcoming and completely separate Supreme Court case, in which 12 individuals from four properties are suing the project, alleging health and financial damages from turbine noise, could be a different story.

Whatever the outcome, say Hall & Wilcox, “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.”

In terms of the proposed new regulations, Lexology notes that the analysis in Deloitte’s Regulatory Impact Statement concluded that Option 1 (new direct regulation) was preferred to the Base Case (status quo) and to Option 2 (Permit system).

“The view of the paper is that [this combination] 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 blog says.

“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 … this relies on many different assumptions as to costs associated with compliance and disputes which may be too conservative,” it concludes.

Meanwhile, the Victorian government is also inviting feedback on a package of requirements for wind farm operators to demonstrate compliance with the Act, as proposed under two of the options.

That package includes requirements for wind farm operators to comply with the relevant noise standard (NZS 6808); to implementing a noise management plan, including a complaints management plan; to provide an annual statement of actions taken to ensure compliance; to complete a post-construction noise assessment; and to undertake noise assessments every five years.

Feedback can be given in response to survey questions here. The government says that, following consideration of feedback from the public, the preferred regulatory option will be introduced with the commencement of the Act on 1 July 2021.