In August the Australian Wind Alliance pointed out a mismatch in the current legislation governing wind farm compliance. We concluded the post by saying, “This case shows that it is sorely needed to provide clarity to wind farm neighbours, councils and wind farm operators alike.” Since then the Government has provided that clarity with the proposed Public Health and Wellbeing Amendment Bill 2020.
The issue we highlighted in August was that there are two separate pieces of legislation that could be used to manage wind farm noise, one intended and one unintended. The intended legislation, the Planning and Environment Act, is based on planning laws and science based regulation to protect health. The unintended one is the Public Health and Wellbeing Act 2008. When applied to wind farms, it allows subjective criteria to be used to pressure councils into spending limited resources on inadequate investigations, creating uncertainty for community and wind farm operators.
Others also pointed out the need to change. The Municipal Association of Victoria wrote in 2018 That the legislative duplication is “inefficient and impacts on residents, wind farm owners and is a large resource burden on local councils and their communities." A position the National Wind Farm Commissioner also agreed with.
Victorian Health Minister, Martin Foley, said in Parliament that the Nuisance laws are old but have informed our laws today, codified in Victoria’s Public Health and Wellbeing Act. He says they “typically relate to local matters such as noise or odours, that do not fall under any other regulatory framework.” In other words, they are not equipped for the reality of a modern wind farm. He said, “the nuisance provisions were not made with the scale of the wind industry in mind, nor the technical complexity of wind turbine noise and emissions.” We are lucky in Victoria to have a robust framework for wind farms already developed. Foley explains how the Bill will stop duplication:
Thus the Bill will not result in lack of legal protection for a person affected by a nuisance arising from noise or emissions from wind turbines at a wind energy facility. Instead, it will prevent duplication by clarifying that a complaint about wind turbine noise to a council may be made under the Planning and Environment Act, rather than under the nuisance provisions of the Act (or both).
For anyone that followed the last case, based on the Public Health and Wellbeing Act for a wind farm, the confusion was evident from the very start.
The Andrews Government increased oversight on pre- and post-construction noise testing in 2018 by requiring a second assessment by Environmental Protection Agency (EPA) -approved noise auditors. There are avenues for appeal under the current legislation if a wind farm isn’t adhering to the noise conditions in its planning consent. The new legislation introduces a General Environmental Duty (GED) into the Environment Protection Act 2017. This has the effect of adding clarity and reducing burden for councils and communities. The GED laws are due to come into force at some point before 1 December 2021, allowing the EPA to set noise standards, manage wind farm noise and have the powers to investigate breaches. This will take cost and pressure from councils to the better resourced EPA which is a great move.
The Climate Council’s Clean Jobs Plan and Beyond Zero Emissions’ Million Jobs Plan show that new utility scale wind and solar generation is essential for the rebuilding effort post-Covid so having certaintiny for communities regarding noise is welcomed. This is why Australian Wind Alliance welcomes the proposed amendment that closes the door on the confusing duplication of legislation.