Clean Energy Regulator Deflects Complaint – Macarthur Wind Farm Compliance

15 December, 2014

Ms Ann Gardner

Dear Ms Gardner,

Thank you for your email to the Chair of the Clean Energy Regulator, dated 18 November 2014, making a formal complaint about noise and vibration from the Macarthur Wind Farm.

The matters raised by you are more appropriately addressed to the Victorian Department of Transport, Planning and Local Infrastructure {formerly known as the Viictorian Department of Planning and Community Development). They are not matters that fall within the powers of the Clean Energy Regulator {the Regulator) under the various Commonwealth legislation administered by the Regulator.

The Clean Energy Regulator is an economic regulator. With respect to the Renewable Energy Target, the Regulator regulates both the supply of certificates {by ensuring the integrity of their creation by renewable power stations) and the demand and surrender of those certificates {by ensuring liable electricity retailers surrender the correct number of certificates).

The Clean Energy Regulator is only empowered to administer relevant Commonwealth laws {eg to ensure that a wind farm operator complies with its responsibilities under relevant Commonwealth legislation that the Regulator administers). It cannot interfere in state-based activities. If a wind farm is not complying with State/Territory laws {eg as to planning requirements and noise control etc), it is a matter for the relevant State/Territory authority to address.

The Macarthur Wind Farm is an accredited power station under the Renewable Energy {Electricity) Act 2000 {the Act) and the Renewable Energy (Electricity) Regulations 2001 {the Regulations). Once an eligible power station has been accredited, it remains accredited unless the Regulator decides to suspend the accreditation under Division 11of Part 2 of the Act {being sections 30D and 30E and the circumstances prescribed for the purposes of subsection 30E{5) in regulation 20D of the Regulations). One of the grounds for suspension is “if the Regulator believes on reasonable grounds that the power station being operated in contravention of a law of the Commonwealth, a State or a Territory” {subsection 30E{3)).

To date, we have not had reasonable grounds to believe the Macarthur Wind Farm is being operated in contravention of Commonwealth, State or Territory laws. At the time of writing this letter, there has been no finding or judgment from any court or tribunal to the effect that the Macarthur Wind Farm is being operated in contravention of a law of the Commonwealth, a State or a Territory.

The Victorian Department of Transport, Planning and Local Infrastructure is the relevant authority for investigating allegations of non-compliance with that State’s planning permits and laws.

Neither that Department, nor the Victorian Minister for Planning, has to date determined that the Macarthur Wind Farm is being operated in contravention of Victorian law. I also note that the Mayne Shire Council at its meeting on 28 October 2014 determined that the Macarthur Wind Farm “is not currently causing a nuisance of the type governed by Part 6 Division 1of the Public Health and Wellbeing Act 2008 (Vic)”.

It is not the role of the Clean Energy Regulator to stand in the shoes of the relevant state body and decide that a wind farm is being operated in contravention of a state law. Rather, we rely on the advice of the relevant state regulator. On 3 December 2014, the Victorian Department advised us that the Macarthur Wind Farm is compliant with Victorian law. However, should you have evidence that the wind farm is not being operated in compliance with Victorian law, you should provide that evidence to the Department, whose role it is to monitor and investigate allegations of non­ compliance with Victorian law. Alternatively, you could provide the evidence to the Mayne Shire Council, which is responsible for noise control in Macarthur.

Should the Regulator receive creditable evidence that the Macarthur Wind Farm is being operated in contravention of Commonwealth or Victorian law, particularly where that evidence were to be supplied to the Regulator by the relevant state authority, the Regulator would consider suspending the accreditation of the wind farm under subsection 30E{3) of the Act. The Regulator would afford procedural fairness to the operator of the wind farm, by putting that evidence to the operator and allowing a reasonable opportunity for the operator to make a submission as to why the accreditation should not be suspended, before making a decision to suspend . The Regulator would also advise the operator of the internal review and external appeal rights available to it, should the Regulator make a decision to suspend the accreditation of the wind farm.

You may wish to note that, should the Regulator exercise its discretion to suspend the accreditation of a power station, the suspension does not prevent the power station from operating. It simply stops the power station from receiving a benefit, ie from creating Large-scale Generation Certificates (LGCs) during the period of suspension. The Regulator does not have the power to stop the power station from operating.

We have closed our file on your complaint, but thank you for raising your concerns with us.

Yours sincerely,

Mark Williamson
Executive General Manager
Renewables and Carbon Farming Division Clean Energy Regulator

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