Chapter 1

The Renewable Energy (Electricity) Amendment (Excessive Noise from Wind Farms) Bill 2012: Background and details of the bill

1.1        The Renewable Energy (Electricity) Amendment (Excessive Noise from Wind Farms) Bill 2012 (the bill) was introduced to the Senate on 28 June 2012. The bill is a private members bill co-sponsored by Senators Madigan and Xenophon.

1.2        On 11 October 2012 the Senate referred the provisions of the bill to the Environment and Communications Legislation Committee for inquiry and report.

1.3        In accordance with usual practice the committee advertised the inquiry on its website. In addition, the committee wrote to relevant organisations and certain individuals inviting submissions. The committee received submissions from approximately 165 individuals and organisations, and some form letters. The committee also received a number of items of correspondence that, while addressing wind farm noise in general, did not comment on the bill. These items were not published as submissions, but have been received and noted by the committee. Owing to the large numbers of documents that were accepted as correspondence, and the provision of duplicate submissions, some submission numbers were not used: the list of submissions in Appendix 1 is therefore complete, despite some submission numbers being missing.

1.4        The committee held a public hearing in Canberra on 14 November 2012. At the hearing, and subsequently, the committee received evidence from a range of experts, both from Australia and overseas. The committee is very grateful to overseas witnesses for their co-operation in giving evidence at what would have been for them very inconvenient times, and in providing prompt responses to questions taken on notice.

1.5        The committee received written submissions that contained adverse comments about a range of individuals and organisations, all of which were given an opportunity to provide written response. These have been published by the committee and are included in the list in Appendix 1. During the public hearing, Mr Steven Cooper made comments critical of a NSW Department of Planning employee, Mr Jeff Parnell. Mr Cooper said:

I had discussions with him prior to my undertaking the work, and at a recent meeting that was at Cullerin he refused to talk to me...The one officer who is handling noise, at a meeting which was part of an audit process for Cullerin, refused to talk to me and had his back to me for the entire two hours.[1]

1.6        Mr Parnell, a scientist with thirty years' experience with NSW government agencies, wrote to the committee, providing a different account of the meeting described by Mr Cooper, and gave the committee names of others present who he said could corroborate his account. He stated:

The meeting discussed in evidence by Mr Cooper occurred at the home of a resident that had raised concerns regarding a nearby wind farm to the Department... Mr Cooper was introduced as being present as an observer only and did not sit around the coffee table with everyone else, but sat a metre or so away, not behind me but to the side... Mr Cooper was not part of the meeting and did not contribute or speak to me until we were shaking hands at the end...[2]

1.7        Mr Cooper had wanted to speak to Mr Parnell about another matter, but Mr Parnell pointed out that it would not have been appropriate in the circumstances:

When we were leaving the... residence, Mr Cooper said to me “I sent you an email” referring to an email regarding a newspaper clipping in a South Australian paper which discussed the quality of a report he had submitted to the Department. As the project (Flyers Creek Wind Farm) was still having its response to submissions prepared at the time, I replied “This is not the right forum to discuss this, but I am happy to do so at another time”. That was the full extent of my conversation with Mr Cooper.

1.8        Mr Cooper also stated during the hearing that he had provided information in a submission to the Department of Planning, that he had raised some issues in that submission, but that ' there has been no response'.

1.9        Mr Parnell replied that he had not responded because it would not be appropriate to do so under the relevant planning processes:

it can be seen on the Department’s website that the Flyers Creek Submissions Report has not been completed. It has therefore been inappropriate to comment on Mr Cooper's submission. It should however be noted that it is the proponent that prepares responses to submissions, not the Department...I propose to the Committee that Mr Cooper’s version of events is not true and was designed to portray myself as being unprofessional in the carrying out of my duties.

Background

1.10      The scientific evidence shows that the climate is changing. Greenhouse gas emissions caused by human activity are contributing, and if climate change is not tackled it will cause significant human, environmental, and economic costs. In addition to the Intergovernmental Panel on Climate Change, organisations which have given the government this advice include the CSIRO, the Bureau of Meteorology and the Australian Academy of Science. More recently the World Bank commissioned report Turn down the heat has added to the international evidence.[3]

1.11      The Government's response on climate change includes increasing renewable energy supply, energy efficiency measures and putting a price on carbon.

The expansion of renewable energy generation and wind farms

1.12      In 2009 the Australian Government implemented a legislative target, the Renewable Energy Target (RET), aimed at sourcing 20 per cent of energy from renewables by the year 2020.[4] The RET ensures a guaranteed market for electricity generated from renewable sources by requiring wholesale purchasers of electricity ('liable entities') to meet a share of a renewable energy target in proportion to their share of the national wholesale electricity market. The compliance of liable entities with the RET is ensured by the creation of Large-scale Generation Certificates (LGCs). Generators of renewable energy, such as wind farms, receive LGCs which can then be sold to liable entities to enable them to meet their individual RET target.[5]

1.13      Although the Renewable Energy (Electricity) Act 2000 is technology neutral – in that it does not provide additional incentives for one type of clean energy over another – it encourages the most cost-effective form of clean energy generation.[6]

1.14      According to the Australian Government, in order to meet this target, the number of wind farms 'can be expected to increase significantly in the new few years'.[7] As explained by the Clean Energy Council:

Wind power as the lowest cost form of large scale renewable energy is an integral part of the renewable energy mix that will be required to meet Australia's legislated target of 41,000 gigawatt hours by 2020.[8]

1.15      Australia currently has 59 wind farms consisting of 1345 wind turbines with 2480 megawatts of capacity.[9] By way of comparison Liddell Power Station in New South Wales for example is 2000 megawatts. The Energy Supply Association of Australia (ESAA) detailed the rise of wind power in recent years, suggesting this is being driven by the requirements of the RET:

Electricity generation from wind farms has increased markedly over the past few years in order to help meet the RET. The rapid expansion in the number of wind farms has seen production increase from 1.7TWh in 2005–06 to 5.8TWh in 2010–11. Wind energy has increased from 650MW of capacity in 2006 to 2175MW in 2011.[10]

Issues of appropriate noise levels / planning laws

1.16      As with all large scale developments, individual state governments make and administer their own regulations regarding developments.

1.17      The Clean Energy Council argued that planning responsibilities, including sound and placement matters, fall within the domain of individual states, and that wind farms should be treated in the same way as all other projects:

Every Australian state government has planning guidelines that are best suited to the unique requirements of their community, industry, and land use configurations. Planning rules for wind farms (and for any other major project) must simultaneously consider various technical issues and social issues...Appropriate regulations and community consultation should apply to any wind farm, as they do to any new infrastructure.[11]

1.18      In its submission to the committee, the Queensland state government affirmed that it has systems in place to ensure developments balance community, ecological and economic considerations. It stated that it:

...has existing requirements that address environmental impacts, including noise impacts, through the State Development and Public Works Organisation Act 1971, Sustainable Planning Act 2009 and Environmental Protection Act 1994. The environmental impact assessment processes are rigorous, and address the:

• existing environment;
• project's environmental impact; and
• ways of avoiding, mitigating or offsetting these impacts.[12]

1.19      It was argued to the committee by Pacific Hydro that noncompliance with current state planning and noise regulations attracts strong penalties 'which can include financial penalties and shutdowns.'[13]

1.20      In its submission, Infigen Energy – the largest owner and operator of wind energy in Australia – argued that the current planning regimes in Australia are stringent by international standards:

The State Governments have been doing a very thorough job of writing and enforcing some of the most stringent wind farm planning regulations in the world. The Victorian Government has specified a minimum distance between neighbouring residences and turbines of two kilometres. This compares with jurisdictions, with far more extensive experience with wind energy, such as Canada, Denmark, and the USA, specifying much smaller setback distances of 500–600 metres.[14]

1.21      Similarly, the ESAA notes that:

Currently, planning laws are administered by state governments. There is no clear or justifiable reason for the Federal Parliament to interfere with existing state government planning laws.[15]

1.22      The growth of Australia's wind farm industry has not been without its critics. The planning laws applying to wind farms have also been criticised by some groups. For example, the Western Plains Landscape Guardians Association argued in their submission that:

There has arisen within the community an increasingly pressing concern that the present planning guidelines for wind turbine noise control, right across Australia, are not doing their job. In the majority of turbine installations within Australia serious problems have resulted for neighbours once the plant begins operation, even when noise guidelines have supposedly been complied with.[16]

1.23      Similarly, the Parkesbourne/Mummel Landscape Guardians Inc. argued that:

The [NSW] planning legislation does not give adequate attention to the needs of the neighbours of developments. And the noise guidelines are completely inadequate to protect the health and well-being of the neighbours of wind farms.[17]

1.24      Planning issues are explored further in Chapter 4. In addition to planning concerns, opponents of wind farm developments also cite the potential harm to human health caused by wind farm noise. These concerns are canvassed in Chapter 3 of this report.

Current state and territory noise regulations and guidelines for wind farm development

1.25      In relation to noise turbine compliance requirements, the following figures provide some context:

• The World Health Organisation adopts a guideline value of 40dB(A) for general sleep disturbance effects;[18]
• South Australia adopts a guideline of 35dB(A) in rural living zones or 40dB(A) in other zones or the background noise +5dB(A), whichever is greater;[19] and
• Victoria applies NZS 6808:2010 which specifies a guideline of the greater of 40dB(A) or background noise +5dB(A) or in special circumstances a 'high amenity noise limit' of 35dB(A).[20]
• New South Wales draft guidelines for new wind farm developments specify 35dB(A) or background noise +5dB(A), whichever is the greater. Furthermore, the 'noise criteria must be established on the basis of separate daytime (7am to 10pm) and night-time (10pm to 7am) periods'.[21]

1.26      Internationally, many countries use noise standards similar to those currently used in Australia:

• Sweden applies a standard noise limit of 40dB(A), and 35dB(A) in low-background noise areas;
• Denmark applies a noise limit of 44dB(A) at a wind speed of 8 metres per second (m/s) and 42dB(A) at 6m/s. For sensitive areas the allowable noise limit is reduced by 5dB(A) at the respective wind speeds.
• The Netherlands applies a 40dB(A) noise limit at night, increasing incrementally up to 50dB(A) at 12m/s.[22]

2010 National Health and Medical Research Council rapid review

1.27      In July 2010 the National Health and Medical Research Council (NHMRC) released a review of the available evidence at the time culminating in the report: Wind Turbines and Health: A Rapid Review of the Evidence (Rapid Review). The Rapid Review concluded that:

• There is currently insufficient published scientific evidence to positively link wind turbines with adverse health effects;
• Relevant authorities should take a precautionary approach; and
• People who believe they are experiencing any health problems should consult their GP promptly.[23]

1.28      The findings of the Rapid Review have been used by many supporters of wind power – including developers – to argue that wind farms have no adverse impacts on human health and therefore developments should be approved.[24] Critics of wind farms have argued that the Rapid Review which is being used to justify the current regulations of wind farms was not sufficiently thorough, omitted vital information, and has contributed to a lack of understanding regarding the health impacts of wind farms. For example, the Waubra Foundation's Dr Laurie argued to the committee that:

The 2010 NHMRC document omitting this vital knowledge about the known adverse health impacts of low-frequency noise is still being widely used by wind developers and government departments to assert that there are no known health problems with wind farms.[25]

1.29      The Chief Executive Officer of the NHMRC previously clarified that the Rapid Review is a work in progress:

I do want to make a point to anybody who is relying on [the Rapid Review].

We regard this as a work in progress. We certainly do not believe that this question has been settled. That is why we are keeping it under constant review. That is why we said in our review that we believe authorities must take a precautionary approach to this.[26]

1.30      The NHMRC informed the committee that there is a review of the evidence regarding the impacts of wind farms on health currently underway:

The NHMRC has commissioned a third party contractor to conduct a systematic review of the literature examining the potential effects of wind farms on human health. The review is being overseen by an expert working committee that comprises of experts in epidemiology, sleep, psychology, acoustics and a consumer...As this review is not yet complete we are unable to submit any additional advice than that which has been outlined in the NHMRC Wind turbines and health – a rapid review of evidence (2010).[27]

1.31      According to the NHMRC, the Revised NHMRC Public Statement: Wind Turbines and Health Public Statement will be published in May 2013.[28]

2011 Senate Inquiry

1.32      In 2011 the Senate Community Affairs References committee conducted an inquiry examining the social and economic impact of rural wind farms. The Community Affairs committee received in excess of one thousand individual submissions, many letters and other documents, and had access to much published information. Public hearings and site visits were held in various capital cities and regional areas. The committee tabled its report, The Social and Economic Impact of Rural Wind Farms (Inquiry Report) in Parliament on 23 June 2011 making seven recommendations.

1.33      From the outset, the Inquiry Report delineated the relevant responsibilities of State and Commonwealth governments:

Planning and compliance issues for wind farms are matters for the state governments...The Commonwealth also has responsibility for certain aspects of the development of wind farms, such as air safety, and it may become involved in planning processes under the provisions of the Environment Protection and Biodiversity Act 1999.[29]

1.34      In relation to the health impacts of wind farms, the committee concluded that:

Adverse health effects may be caused by wind turbines but they may be caused by factors other than noise and vibration, such as stress related to sleeplessness or perceptions of harm. There is insufficient rigorous research to know the answer.[30]

1.35      After the tabling of that report, Dr Sarah Laurie from the Waubra Foundation was reported as saying: 'Given the Senate recommendations and strength of evidence to the inquiry, the precautionary principle should be adopted.'[31] The Clean Energy Council's policy director Russell Marsh was reported as saying:

[The Inquiry Report] acknowledges the important contribution that wind energy makes to employment and economic development...There is no reason to slow the development of new wind farms based on this report.[32]

Government response to 2011 Senate Inquiry

1.36      On 13 September 2012 the Commonwealth Government tabled its response in the Senate which addressed the seven recommendations made in the Inquiry Report.

1.37      In response to recommendations one through three which relate to noise standards, complaint resolution, and infrastructure locations, the Commonwealth reasserted the prerogative of individual states and territories to establish their own planning regimes and requirements.[33]

1.38      The Commonwealth accepted recommendations four through six in principle. Recommendations four, five and six pertain to the need for research of the possible effects of wind farms on human health, including the impacts on human health of infrasound. The Commonwealth explained that:

The NHMRC is already actively engaged in supporting the assessment of the available research on this issue and will shortly commission a comprehensive review of the literature to inform any update to its 2010 public statement. The review will include audible noise, infrasound and low-frequency noise. A reference group will be established to advise on the review and will include members of the public, industry, researchers, sound engineers/consultants and planning representatives.[34]

1.39      Furthermore, the Commonwealth noted that there is a range of funding mechanisms available for researchers to explore the potential impact of wind farms on human health.[35] 

1.40      The Commonwealth did not accept recommendation seven which called for:

...the draft National Wind Farm Development Guidelines to be redrafted to include discussion of any adverse health effects and comments made by NHMRC regarding the revision of its 2010 public statement.[36]

1.41      As well as noting that the result of the possible revision of the NHMRC's 2010 public statement would depend on the outcome of available research, the Commonwealth advised that no further work would be undertaken on the National Wind Farm Development Guidelines in recognition that relevant jurisdictions have taken appropriate steps, saying:

The Australian Government understands that jurisdictions have developed, or are currently developing, planning application, assessment and approval processes within their own planning frameworks to manage community concerns about wind farm developments such as turbine noise, shadow flicker, electromagnetic interference and impacts on landscapes and wildlife. The EPHC Standing Committee therefore has decided to cease further development of the Guidelines.[37]

Purpose of the bill

1.42      The bill seeks to amend the Renewable Energy (Electricity) Act 2000 (Act) to give powers to the Clean Energy Regulator that ensure that accredited power stations that are wind farms, either in whole or in part, do not create excessive noise.[38] The accreditation of wind power stations who do create excessive noise would be suspended, thereby preventing them from creating and on-selling Large-scale Generation Certificates (LGCs)

Large-Scale Generation Certificates

1.43      The Act provides for the creation of LGCs by accredited power stations that generate their electricity through renewable technology. Each LGC represents one megawatt hour (MWh) of generated renewable energy electricity. Accredited renewable energy power stations create LGCs which can be sold through the open LGC market, where the price varies according to supply and demand. LGCs improve the financial viability of renewable energy projects by allowing them to sell both the electricity generated, and the LGCs.

1.44      Demand for LGCs is created by the Large-Scale Renewable Energy Target (RET) that specifies the amount of renewable energy to be generated by renewable energy power stations, for every year up to 2030. The RET places a legal requirement on 'liable entities' (typically electricity retailers) to purchase a set number of LGCs each year taking into account factors such as volume, specific exemptions, and that year's national renewable energy target.

1.45      Liable entities must surrender the required number of LGCs to the Clean Energy Regulator to meet their annual liability. If a liable entity does not surrender its required number of LGCs in a year, it is liable to pay a shortfall charge – currently set at $65 per LGC not surrendered. By comparison, the Clean Energy Regulator has estimated the volume weighted average market price for a LGC for the 2012 year as $35.24.[39] Energy Australia warned in its submission that if the LGC market was insufficiently supplied, liable entities would pass the additional costs of the shortfall charge onto consumers resulting in higher power prices.[40]

1.46      Producers of renewable energy can sell both their electricity to the National Energy Market as well as the LGCs that they earn. This significantly improves renewable energy projects' financial viability.

Provisions of the bill

1.47      The bill includes one schedule that includes nine sections which will be considered in this section thematically.

1.48      Sections one, two and four deal with issues of definition. Section two defines 'wind farm' as 'a power station that generates some or all of its power from wind'. Sections two and four together define what constitutes 'excessive noise' for the purpose of the bill. A wind farm is deemed to create excessive noise if the level of noise attributed to the wind farm exceeds background noise by 10dB(A) or more when measured within 30 metres of any premises that is used for residential, work, or congregational purposes. The issues surrounding wind farm noise, and appropriate noise standards, are discussed in further detail in Chapter 2 of this report.   

1.49      Section three amends subclause 14(2) of the Act which related to the eligibility of power stations for accreditation under the Act. Section three of the bill adds an additional criteria to the existing eligibility criterion in the Act, namely, that a wind farm can only receive accreditation if 'the Regulator is satisfied that the wind farm does not, and will not, create excessive noise.'

1.50      Section five of the bill amends the Act to require the operator of a wind farm to publish on the internet information pertaining to noise, wind speed and direction, weather conditions, and power output of individual turbines.

1.51      Sections six through eight of the bill amend the subclause in the Act that empowers the Regulator to suspend the accreditation of a power station in three ways. The effect of the suspension of a power station is that the suspended power station can no longer earn RECs for the duration of the suspension, however, the power plant can continue to operate.

1.52      At present the Regulator 'may' suspend the accreditation of a power station if the Regulator 'believes on reasonable grounds' that the power station 'is being operated in contravention of a law of the Commonwealth, a State, or a Territory'. Section six of the bill proposes to substitute 'must' for 'may', thereby removing discretion in this matter from the regulator.

1.53      Secondly, section seven proposes to extend the scope of laws that an operator can be in contravention by replacing 'law of' with 'law (whether written or unwritten) of or in force in'. The Explanatory Memorandum of the bill explains that the purpose of this is to:

...make it clear that a power station's accreditation may be suspended if it contravenes any law in force...including the common law tort of nuisance which is captured by the proposed reference to 'unwritten' laws.[41]

1.54      Lastly, section 8 of the bill details an additional set of criteria that apply specifically to wind farms. The Regulator must suspend the accreditation of a wind farm if the regulator believes on reasonable grounds that the a wind farm is creating excessive noise, or if the wind farm is not collecting and publishing the data stipulated in section five of the bill.

1.55      Section 9 of the bill outlines the scope of the bill, namely, that the amendments will apply to power stations regardless of whether the power station is already accredited at the date of commencement, or is seeking accreditation after the commencement of the bill.

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