Chapter 5
A consideration of the administrative issues in the bill
5.1
The committee has established that there is no evidence available to it
to show that wind farms produce health impacts different in nature to those
caused by other noise sources. Wind farms do produce noise, which is why they
are subject to planning regulations, including guidelines prepared specifically
for wind farm proposals, intended to ensure that noise issues are addressed.
5.2
In the course of considering health and noise issues, the committee has
identified a number of reasons why the bill is inappropriate. In addition to
these points, there are a range of other arguments that were put to the
committee regarding why the bill should not be supported.
The bill is discriminatory against
one kind of power generator
5.3
In its current form the bill discriminates against one kind of
industrial noise producer. Ratch-Australia Corporation argued that '[t]he
amendment singles out wind farm developments for an increased level of
scrutiny.'[1]
The Clean Energy Council concurred with the view that wind farms are being
singled out in the bill in comparison with the regulatory burden on other types
of power generation:
Appropriate regulations and community consultation should
apply to any wind farm, as they do to any new infrastructure – be it a
conventional fossil fuelled power station, a tourist development, a road, a dam
or a mine. Where appropriate, on the basis of merit, the planning scheme should
manage impacts and relevant concerns. However, that must be balanced within
broader state policy objectives.
Treating wind farms differently from other forms of
infrastructure could create a precedent that stifles investment in other
projects essential to Australia.[2]
5.4
Energy Australia also argued that the bill was not consistent in its
treatment of all infrastructure:
The application of regulations and standards should apply
equally to wind farms and other new infrastructure, for example, roads, fossil
fuelled power stations, ports, or mines.[3]
5.5
The health implications from the noise from wind farms was discussed by
the Public Health Association of Australia, which also could not understand why
wind farms were being treated differently to other forms of power generation:
We also note that electricity generation from other sources
particularly fossil fuel mining and combustion has a range of well-documented
adverse impacts. These include: visual impacts, dust and organic particulate
and gas emissions, effects on local communities, and lifecycle environmental
effects such as greenhouse gas emissions and consequent global warming. Noise
is only one of the factors which affect health and well-being. These other
impacts have received disproportionally less attention than issues relating to
wind turbines. A focus on a single aspect of one method of electricity
generation will create a skewed approach to the policy question of
‘as-healthy-as-possible’ electricity generation choices in Australia.
Given this broad context of adverse effects, we submit that
it is not appropriate for a Bill intending to address any adverse effects to
focus on only one aspect of a single electricity generation process.[4]
5.6
The Conservation Council of South Australia pointed out succinctly that
'noise is not unique to wind farm developments,'[5]
while Joe Hallenstein suggested 'that any noise legislation should cover ALL
emitters of noise, be it noise from energy generation, industry, cars, farm
equipment, barking dogs or bleating sheep'.[6]
5.7
The committee also noted the submission from Community for the Accurate
Impact Assessment of the Dalton Power Station, a residents' organisation
concerned about noise issues associated with the construction of a gas turbine
power station in a rural area.[7]
The issues raised in that submission are the same as those raised about wind
farms, and the committee sees no reason why the regulatory approaches to the
two types of facility should be different.
The bill will not prevent wind
farms from operating but could impact on electricity prices
5.8
The bill has also been criticised because it will not prevent wind farms
from operating, even if there are issues of non-compliance. A wind farm that
contravened the provisions in this bill would lose its capacity to earn Large
Scale Generation Certificates (LGCs) until it established compliance. But this
has no bearing on the wind farm's right to operate. As long as a wind farm
complies with existing planning laws relating to noise, it will be able to
operate, regardless of whether the bill passes.
5.9
This would not be the case. However, while not directly affecting wind
farm operations, the bill's provisions would impose a financial penalty on the operating
company and could increase electricity prices.
5.10
Energy Australia and the Energy Supply Association of Australia
submitted that the Renewable Energy (Electricity) Act 2000 currently creates
a certain amount of LGCs to meet the Renewable Energy Target. They argued that if
the number of LGCs falls then this would increase costs, and consequently
prices:
Under the RET, liable retailers of electricity are
statutorily required to acquit a certain number of Large Scale Generation
Certificates (LGCs) to the Clean Energy Regulator each year. The Excessive Noise
Bill significantly exposes electricity retailers who are statutorily required
to acquire LGCs under the RET, where the retailer is sourcing LGCs from a wind
farm subject to suspension of accreditation.[8]
The effect of this bill, should it be implemented, would be
to increase the costs of complying with the RET. This would flow through to
higher electricity prices. In many cases, wind farm developers have entered
into power purchase agreements (PPAs) with electricity retailers. PPAs secure a
price for the wind farm developer for the electricity generated and any
associated RET certificates. This also helps retailers to secure a source of
certificates to meet their obligations under the RET. If electricity generation
and RET certificate creation from a wind farm decreases as a result of this
bill, retailers would then need to source certificates elsewhere. This
increases the costs of compliance for retailers and would increase electricity
prices as a result.[9]
Increased monitoring cost
5.11
There was concern that monitoring the obligations contained in the bill
would be costly and impractical. The Clean Energy Council queried the expense
of installing additional monitoring equipment:
The excessive noise bill requires ongoing monitoring of noise
at numerous locations, as well as wind speed, direction, and undisclosed other
“weather conditions”. Such monitoring, done properly, would come at significant
cost.[10]
5.12
Pacific Hydro also suggested that the requirement to assess noise levels
against background noise would create an impossible situation:
...we are of the view that the proposed legal limit cannot be
measured continuously. To do so would require turning the wind farm on and off
to establish the actual impact above the background noise level at the time.
This is an entirely unworkable proposition.[11]
The bill involves the Commonwealth
taking over planning and regulatory responsibilities from states
5.13
Several submissions highlighted that the bill involved the Commonwealth
assuming control of planning and regulatory responsibilities that are the
responsibility of State governments. Repower Australia put it that:
State Governments are responsible for establishing the
planning framework for new infrastructure, such as wind farms, and already have
clear standards relating to wind farm noise.[12]
5.14
The Energy Supply Association of Australia (ESAA) noted that:
The proposed legislation would also set a worrying precedent
in terms of Commonwealth involvement in state planning issues. 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 in the case of wind farms.[13]
5.15
In the same vein, EnergyAustralia observed that:
Currently, the relevant jurisdictional Environmental
Protection Agency is the only body that regulates noise compliance of wind
farms. The Excessive Noise Bill implicitly proposes that the Clean Energy
Regulator (as the regulatory agency in relation to the RET) will also have a
role to play in regulating compliance of noise arising from wind farms.[14]
5.16
In contrast to these views, the Waubra Foundation argued that the bill
is necessary because:
No responsible State noise pollution regulation authority is
actively and thoroughly investigating the noise pollution, even when multiple
complaints are made, and the seriousness of the situation is made clear. The
investigation, if it occurs, is cursory, often with equipment which cannot
measure the full acoustic spectrum or the true background noise accurately, and
it always occurs when the wind project operators are well aware that such an
investigation is occurring.[15]
5.17
The Clean Energy Council expressed fears that duplicating planning
requirements at the Commonwealth and State level would create inconsistency and
confusion:
Noise guidelines form a part of an overall planning scheme
and should be determined by individual state governments, to be considered and
defined alongside other aspects of infrastructure planning. Setting a national
rule sitting above existing state-based planning regimes will create
inconsistency and confusion for planners, industry and the community...State
governments should be left to design their noise requirements as part of their
broader planning regime.[16]
5.18
The Queensland Government opposed most of the bill's provisions, and
pointed out that it has existing processes for addressing impacts, including
noise impacts. It also argued that the bill's removal of discretion in how a
regulator acts because it bypasses opportunities for more appropriate
enforcement actions such as directions to comply.[17]
Appropriateness of the noise
standard in the bill
5.19
A number of submissions received by the committee queried the
appropriateness of the bill establishing a noise standard that applies only to
one kind of operation. For example, the ESAA posited that:
A range of industrial and transport installations generate
noise, often more consistently than turbines. There is no clear reason as to
why wind farms alone should be shut down because of this. This Bill would place
requirements on one particular technology which do not apply to any other form
of technology. Furthermore, defining 'excessive noise' as exceeding background
noise by 10dB within 30 metres of a range of premises sets an astonishingly low
threshold for what is considered to be excessive noise.[18]
5.20
Similarly, EnergyAustralia argued that the proposed noise standards were
inappropriate:
In its operation, the [bill] would allow wind farms to be
louder than existing noise guidelines at time of high background noise, and
will restrict wind farms to unreasonable noise levels when background noise is
very low. If background noise levels were about 5 dB then a wind farm would be
allowed to emit only 15 dB, 30m from a dwelling, workplace or congregation
area...The proposed standards are overly onerous given that the World Health
Organisation recommends noise levels in sleeping areas are kept to less than 30
dB for healthy sleeping conditions.[19]
5.21
The Clean Energy Council also questioned the selection and
appropriateness of the noise standards to be established by the bill:
The excessive noise bill, at its core, demands that wind
farms do not exceed background noise levels at residences by more than 10dB. However
it does not describe the rationale behind the selection of this noise level.
The excessive noise bill also neglects to describe the methodology of this
measurement. For example, the measurement distance from dwellings or workplaces
of 30m is totally arbitrary and unscientific.[20]
5.22
Vestas[21]
and Alstom[22]
also pointed out that the excessive noise provisions in the bill appear
inappropriate and could have adverse consequences. Vestas states that:
The provisions of section 4 will actually allow wind farms to
be louder than they would be permitted to be under existing noise guidelines at
times of high background noise. Such a rule will also restrict wind farms to
unreasonable noise levels when background noise is very low.[23]
Impact on operators
5.23
Although not retrospective, the bill would treat some operators unfairly
and undermine investment confidence. TrustPower, a New Zealand-based renewable
energy company, noted possible repercussions of the passage of the bill:
TrustPower's continued investment in Australian wind farms
requires regulatory certainty over the life of a project. TrustPower considers
the bill in its current form as practically unworkable with very significant
unwarranted regulatory risk for existing and future wind farm investments.[24]
5.24
Similarly, EnergyAustralia noted:
Imposing additional, more onerous, noise regulations in
relation to existing assets is a serious concern and something that will have
significant ramifications in relation to the existing commercial and financing
arrangements which underpin these large infrastructure projects.[25]
5.25
The bill's requirement that operators provide various data measures was
questioned on the grounds of cost, relevance, and reason. It was pointed out to
the committee that a large amount of data is already publicly available through
such sources as the Bureau of Meteorology and the Australian Energy Market
Operator.[26]
5.26
The bill seeks to put commercially sensitive data into the public arena.[27]
Some submissions questioned the rationale behind releasing data on individual
turbines noting that:
The power output of individual wind turbines is proprietary
information and is protected vigorously by a project owner as well as the
turbine manufacturer. Other power stations are not required to publish
operational data.[28]
5.27
As well as commercial sensitivity, the committee heard allegations that
the data provided by operators to stakeholders was often unreliable.[29]
If the data is inaccurate, it is unclear how the public having access to this
data would limit excessive noise.
Conclusion
5.28
Every resident, whether in a city or rural area, should be protected
from unreasonable environmental impacts by the operation of planning laws and
guidelines. These processes, primarily the responsibility of states and
territories, should be non-discriminatory as they apply to different kinds of
development, and should make provision for monitoring and enforcement.
5.29
It is a principle of good practice law-making that laws and regulations
should be designed to target their intended outcome, and minimise unintended
consequences. They should, as far as possible consistent with meeting their
objectives, minimise uncertainty and the costs associated with compliance.
5.30
On all of these tests, the current bill has significant shortcomings.
The committee does not believe it should be passed.
Recommendation 4
5.31
The committee recommends that the bill not be passed.
Senator Doug Cameron
Chair
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