Written by Mark Beaufoy and Bridget Phelan.
What you need to know
There are significant new regulations introduced for noise from wind energy facilities (WEF) following amendment to the Environment Protection Regulations 2021 in August 2021 which introduced Division 5 – Wind Turbine Noise into Part 5.3 – Noise -into the EP Regulations[1] and Planning Scheme Amendment VC 212 which amended the Farming Zone in all planning schemes.
The amendments to the Environment Protection Regulations 2021 introduces detailed regime of testing, reporting and auditing of noise to be regulated by the EPA:
- Noise management plans are required by 1 January 2022
- Annual statements are required after 1 July 2022, and
- From 1 January 2024 there is a requirement for noise monitoring in 5 yearly intervals.
Some of these obligations are similar to what has been included in planning permits in the past. What is particularly new is the requirement for an annual statement to the EPA and the 5 yearly noise monitoring audited program.
Planning permits will no longer include the standard conditions on operational noise. However existing permit conditions continue. WEF operators should consider seeking modification to its permit in order to avoid any confusion or duplication.
The prescribed noise levels are not changing. What is changing is the enforcement and reporting regime which shifts away from Councils to the EPA.
The Farming Zone for all planning schemes has also been amended by VC 212. Farmers and landowners who could use land as of right for a dwelling will now need to seek a planning permit to use land, or for buildings and works associated with, a dwelling, rural worker accommodation, dependent person's unit or bed and breakfast if the site is within 1 km of the nearest title boundary of land subject to a WEF permit or application.
Noise from WEFs is an ongoing and sensitive issue which is subject to frequent litigation. This includes the recent nuisance proceedings the Supreme Court[2], as well as VCAT proceedings[3] arising from objector appeals to planning permit applications and which have concerned which types of farm buildings are considered 'dwellings' for the purposes of WEF noise controls which has been critical in determining the location of turbines.
These changes provide for a greater level of regulatory scrutiny of noise from WEFs over their entire operating life. Nearby landowners are also now subject to permit requirements for undertaking works on or constructing a new dwelling or accommodation use. It is likely that a new dwelling or changes to an existing dwelling located within 1 kilometre of the nearest title boundary of land subject to a WEF or proposed WEF will require noise mitigation measures that satisfy the decision maker the noise and shadow flicker impacts from the operation of a wind energy facility are avoided or reduced to an acceptable level.
The EPA will now oversee new obligations on noise
Prior to 1 July 2021, noise from WEFs was regulated through planning permit conditions with complaint management and enforcement largely been with Councils. With the commencement of the EP Regulations, the EPA becomes the primary regulator for wind turbine noise for new and existing WEFs[4].
The EP Regulations allow a transition period for some of the new requirements to take effect (the key dates are noted below).
The new requirements in the EP Regulations for WEF operators are set out in the following table:
Obligation |
Summary |
Duties on operators of WEFs (r.131C) |
WEF operators must ensure wind turbine noise is compliant with the relevant noise standard and take all applicable actions to manage and review the turbine noise. The relevant noise standard is NZS 6808:2010 (or NZS 6808:1998 for older WEFs where authorising documents were issued before 31 December 2010) |
Post construction noise assessment (r.131D) |
The operator of a WEF which commences operation on or after 1 August 2021 must ensure a post-construction noise assessment for the facility is prepared within 12 months of operations commencing, or in the case of WEFs which commence in stages, within 12 months of each stage being completed. The post-construction noise assessment must be completed in accordance with NZS 6808:2010 by an acoustic expert and must demonstrate whether or not the facility is compliant with the noise limits prescribed by NZS 6808:2010. The operator must engage an environmental auditor to prepare a report to accompany the post-construction noise assessment and provide a copy of each report to the EPA within 10 business days of their completion. |
Noise management plan (r.131E) |
*This regulation applies on and from 1 January 2022* WEFs must have a noise management plan which sets out procedures for:
|
Annual statement (r.131F) |
*This regulation applies on and from 1 July 2022* The WEF operator must provide a statement to the EPA within 4 months of the end of each financial year demonstrating whether or not the wind turbine noise complied with the noise limits prescribed by the relevant noise standard. The statement must detail any complaints received about wind turbine noise and how the complaints were addressed, demonstrate whether the turbine operating modes complied with any requirements in the WEF's authorising document under the P&E Act 1987, identify maintenance activities undertaken including unscheduled servicing, and provide details of noise remediation activities. |
Wind turbine noise monitoring (r.131G) |
*This regulation applies on and from 1 January 2024* Within 3 months of the fifth anniversary of the WEF facility commencing operation, and every subsequent 5 years, the operator of the WEF must engage an acoustic expert to conduct monitoring and prepare a report on whether the turbine noise complies with the noise limits prescribed in the relevant standard. The operator must engage an environmental auditor to review the report, and then submit a copy of both reports to the EPA. |
We also note that landowner agreements can still be made for existing dwellings within 1 km of a turbine. In the past these were recommended to have a 45dB limit, and this is now formalised into a requirement for new agreements to have either the greater of 45dB or background sound level + 5dB (r 131B(2)).
The EP Act
The new EP Act also introduced the 'unreasonable noise' (s 166) provision, which prohibits a person from emitting or permitting to be emitted an unreasonable noise. The noise from wind turbines will be unreasonable if it exceeds the noise limit prescribed in the relevant standard (r 131H).
The new EP Act introduced the 'general environmental duty'(s 25) to take reasonably practical steps to minimise the risks of harm to human health or the environment from pollution or waste, including noise. This duty covers all industries, and therefore captures wind farm operators.
The EPA has a range of enforcement tools it can use to regulate WEFs. In addition, we note that the new third-party civil remedies (s 309) under the EP Act means landowners or community groups whose interests are affected by a wind farm operator contravening or not complying with their legal obligations (including the GED) can apply to the court for an order restraining the conduct, or requiring certain corrective action be taken.
New planning permit triggers for dwellings and accommodation in the Farming Zone near proposed and approved WEF
On 13 October 2021, the Victoria Planning Provisions were amended by VC 212 to introduce new planning permit requirements for dwellings and accommodation (rural works accommodation, bed & breakfast and a dependent person's unit) in the Farming Zone. The result of which is that where those uses (and works associated with them) could previously have been carried out under the zone without a planning permit, an application will now need to be made where the proposed use or works will be within 1 kilometre of the nearest title boundary of land subject to a WEF permit or an application for a WEF[5].
This introduces a new requirement for a landowner / farmer. It seeks to protect a WEF, or even a potential WEF that has been applied for but not yet been approved, from encroachment from dwelling/accommodation uses. This approach is broadly consistent with a trend in planning to manage reverse amenity impacts on non-residential uses, for example the introduction earlier this year of the Buffer Area Overlay into the Victoria Planning Provisions, the Strategic Extractive Resource Areas which have been identified to protect quarrying from sensitive uses in Victoria's Extractive Resources Strategy and the management of noise impacts from Melbourne Airport through the Melbourne Airport Environs Safeguarding Standing Advisory Committee.
Notice of an application for dwelling / accommodation must be given to the owner and occupier of the land on which the WEF permit (or permit application) applies. This notice may be required even where the proposed dwelling / accommodation is over 1 km from a turbine or proposed turbine site. This is because the permit application relating to a dwelling / accommodation applies where that site is within 1 km of the nearest title boundary of land subject to a WEF permit or application. As a result, a proposed dwelling may in fact be over 1km from a turbine or proposed turbine This is slightly different to the test of where a wind turbine can be proposed near an existing dwelling. In that scenario, the planning schemes provide permits for WEF cannot be granted where there is an existing dwelling within 1km (unless consent of the dwelling owner is provided)[6].,
While decision makers have always needed to consider the impact of a proposed WEF on a proposed dwelling / accommodation[7] the recent changes make this express in the planning scheme. In the past it has been accepted that well developed WEF permit applications that are a long way through the assessment process (but have not yet been decided) must be considered. The changes to the Farming Zone provide that a WEF permit application that has simply been made, or even contemplated by a proponent asking the Minister if an EES is required, is enough to trigger the need for a planning permit application relating to the dwelling/accommodation.
We think that the likely outcome of a permit application for use or works relating to a dwelling / accommodation will be negotiation with the WEF operator to ensure that any noise or shadow impacts can be mitigated. This may lead to increased costs for the dwelling works. If the WEF has not yet been approved it may lead to some amendment in its designs. Where the impacts cannot be mitigated, the dwelling/accommodation application may be refused.
If you have any queries about these changes, please contact us.
[1] See Environment Protection Amendment (Wind Turbine Noise) Regulations 2021 which came into operation on 1 August 2021.
[2] 4 Noel Uren & Anor v Bald Hills Wind Farm Pty Ltd (current proceedings),
[3] Hopkins v Minister for Planning (Red Dot) [2020] VCAT 1124.
[4] In addition, the Public Health and Wellbeing Amendment Act 2021 provides that noise from wind farm turbines are no longer subject to the nuisance provisions of the Public Health and Wellbeing Act 2008. As result, Councils will no longer manage any noise complaints from wind energy facilities.
[5] It applies where the land is subject to:
- permit for a wind energy facility; or
- An application for a permit for a wind energy facility: or
- An incorporated document approving a wind energy facility; or
- A proposed wind energy facility for which an action has been taken under section
8(1), 8(2), 8(3) or 8(4) of the Environment Effects Act 1978.
[6] Clause 52.32 Victoria Planning Provisions.
[7] Macarthur Wind Farm Pty Ltd v Moyne Shire Council (2006) 147 LGERA 62
