Australia: Amendment VC82 – Gone with the wind

On 29 August 2011, the Victorian Government gazetted Amendment VC82 (Amendment) which makes significant changes to Victorian planning schemes in relation to wind energy facilities. These changes build on amendments made by Amendment VC78 in March 2011 (March Amendment) (See our legal update: Winds of change: wind farm amendments to Victorian planning schemes).

The most significant change is the implementation of the Coalition's wind farm election policy to prohibit turbines within 2km of a dwelling.  The prohibition is not absolute and can be lifted where the owner of a dwelling within a 2km radius of any turbine that forms part of a proposed wind energy facility has given written consent.  This builds on the requirement for wind energy facility developers to include a plan in its permit application showing all dwellings within two kilometres of a proposed turbine which was introduced by the March Amendment.

The Amendment also introduces new "no-go" zones for wind energy facilities. The wind energy facilities "no-go" zones now include:

  • the Mornington Peninsula
  • the Yarra Ranges
  • the Bellarine Peninsula
  • the Great Ocean Road region
  • land in the Macedon and McHarg Ranges
  • land within 5km of the coast in the Bass Coast Planning Scheme and South Gippsland Planning Scheme west of Wilsons Promontory
  • land within 5km of 22 regional cities (except where a wind energy facility is integrated as part of the development of the land where the land is in a residential zone, industrial zone, business zone or special purpose zone)
  • land described in a schedule to the National Parks Act 1975 (except where the wind energy facility is to be principally used to supply electricity to a facility used in conjunction with conservation, recreation, administration or accommodation use of the land)
  • land declared a Ramsar wetland (under section 17 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)).

The transitional arrangements set out in clause 52.32-7 are identical to those provided by the March Amendment namely:

  • Where the following applications are made before 15 March 2012 in relation to a permit for a wind energy facility that was issued before 15 March 2011, the version of clauses 19.01-1, 52.32, 61.01 and 81.01 in force before 15 March 2011 will apply to:
    • an application under section 69 for an extension of time under a permit
    • an application to a responsible authority for an amendment of a permit
    • an application to the Tribunal to cancel or amend a permit and
    • an application to the Tribunal for review arising from one of the above applications.
  • Any extension of time of a permit granted pursuant to these transitional arrangements must specify an expiry date for the commencement of the development no later than 15 March 2012.

These transitional arrangements do not however apply to planning permits issued by the Minister.  For such planning permits, applications to amend or to extend a planning permit will be considered in the context of the new planning scheme requirements.  

Prior to March 2011, permit decisions concerning wind energy facilities with an energy generation capacity over 30MW lay with the Minister.  This represents a large number of approved wind energy facilities.  This means than in practice, many wind energy facilities will not benefit from the transitional arrangements.  

The Amendment also includes the Policy and Planning Guidelines for Development of Wind Energy Facilities in Victoria (August 2011) as a "reference document", confirming that these guidelines replace the March 2011 Guidelines (See our legal update: Further winds of change: Policy and Planning Guidelines released).  However, whereas the previous guidelines were an "incorporated document" in all planning schemes, the status of the new guidelines has now been altered to a reference document.  As a consequence, it may be argued that the new guidelines should be afforded less weight than the previous guidelines when assessing an application for permit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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