Australia: New Wind Energy Planning Framework for NSW – have your say

Last Updated: 22 August 2016
Article by Nick Thomas and Rebecca Davie

Most Read Contributor in Australia, August 2016

The draft Wind Energy Planning Framework is open for comment until Friday 16 September 2016.

The NSW Government has taken a significant step to facilitate wind energy development in New South Wales, with the release of the NSW Department of Planning and Environment's Wind Energy Planning Framework package for public consultation.

The package is aimed at clarifying what's required, when and how for wind farm approvals, increasing opportunities for earlier and more effective community involvement in the development of large-scale wind energy projects, reducing timeframes for assessment and approval pathways, and providing more certainty for both proponents and communities. The ultimate objective is to attract more investment in wind energy in NSW, and so deliver on key elements of the NSW Renewable Energy Action Plan.

In December 2011, the Department released draft Planning Guidelines for Wind Farms for public consultation. Following further work and an extensive stakeholder consultation process, the new 2016 Framework is more comprehensive and reflects a renewed approach to wind energy development.

The Framework comprises:

  • an overarching Assessment Policy;
  • a technical Noise Assessment Bulletin;
  • a technical Visual Impact Assessment Bulletin; and
  • Standard Secretary's Environmental Assessment Requirements (SEARs).

Wind energy development impact assessment

The Bulletins and the Standard SEARs acknowledge that large-scale wind energy development has certain specific impacts, unique to wind energy compared to other developments but common across wind energy projects, that should be addressed. Some of these impacts arise from the unique circumstances of wind farms ? that they are likely to be a single project, in a rural setting, across properties owned and occupied by multiple parties (who are likely to be involved in primary production rather than wind energy).

Key impacts noted in the Assessment Policy include:

  • Visual impacts While visual impacts are often subjective, the Assessment Bulletin recognises the importance of considering visual impacts given that wind energy development is often undertaken in rural settings. Cumulative impacts are also acknowledged and will be considered by the consent authority.
  • Noise impacts: The Assessment Bulletin adopts the 2009 South Australian document "Wind Farms ? Environmental Noise Guidelines" with specific variations for NSW requirements. The NSW Framework sets a noise impact assessment standard that the predicted equivalent noise level at residences, should not exceed 35dB(A) or the prevailing background noise plus 5dB(A), whichever is the greater. This does not apply to residences on which wind turbines are located or residences with which a relevant negotiated agreement is in place. The Assessment Policy also sets out a commitment by the NSW Government to "continue to monitor contemporary scientific research outcomes to ensure its policy position reflects robust evidence on any health effects".
  • Decommissioning and rehabilitation: The Framework is directed at ensuring that suitable arrangements are in place to provide for decommissioning and rehabilitation which may happen many years into the future and is best addressed by the proponent of the project or operator of the wind energy facility rather than the landowner.

Other important impacts which the Assessment Policy addresses include:

  • Biodiversity (including bird and bat strike);
  • Traffic and transport;
  • Strategic context (with regard to the objectives of the Renewable Energy Action Plan);
  • Hazards and risk (including the key issues of aviation safety and bushfire hazards);
  • Telecommunications;
  • Cumulative impacts.

Working with communities

The Assessment Policy places significant weight on consultation. It notes that the standard SEARs outline the minimum consultation requirements for State significant development wind energy projects during the assessment process. Community and stakeholder consultation should be "early and effective" and "comprehensive, detailed and genuine".

The Assessment Policy sets out guidance on specific issues that should be addressed through consultation and when the appropriate time to do this is. Consultation is to be an ongoing process throughout the assessment of a proposed project and throughout the life of a wind energy development.

One of the most significant policy shifts by the NSW Government is to move away from the 2km buffer zone, which was proposed in the 2011 draft Guidelines, towards the use of negotiated agreements as a means of engaging with near land holders. In 2011, the NSW Government's position was that the consent of landowners within 2km of a proposed wind energy development was required to enable the project to proceed. The new approach recognises that proponents and communities should look for innovative ways to share the benefits of wind energy developments and that, while community consultation is very important, effective consultation does not require a proponent to get every stakeholder onside.

Of course, to the extent that any infrastructure is proposed on particular land (known as "associated properties"), landowner consent will be required under current planning legislation, and these landowners will need to be consulted. However, the Assessment Policy also recognises that other landowners also have a significant interest in wind energy projects and should be consulted, including owners and occupiers of land required for access during construction and/or maintenance of the facility (known as "non-associated properties").

The NSW Government's policy shift follows the reduction of the wind farm buffer zone from 2km to 1km in Victoria in 2015 and the acceptance of negotiated agreements as an appropriate mechanism for impact mitigation more generally (eg. in relation to blade flicker impacts). Queensland's new Wind farm assessment framework (effective from 22 July 2016) incorporates a setback distance of 1,500m for non-host properties unless the landowner has entered into a negotiated agreement. Where negotiated agreements are not reached, proposals will be subject to impact assessment (rather than code assessment) and affected parties will have an opportunity to comment on proposals, with subsequent appeal rights.

Application of the Wind Energy Planning Framework

While the Framework provides some guidance for all wind energy projects, its specific application is for large-scale wind energy projects that satisfy the criteria of being "State significant development". Broadly speaking, wind energy development will be a State significant development where it has a capital investment value of $30M or more.

Have your say

There are significant wind energy resources in NSW. However, investment in wind energy projects to date has lagged behind some other States. This might reflect, in some part, a planning assessment process that has been uncertain and, as the Minister's acknowledged, lengthy. The Minister said "The new framework will address delays in the assessment process that in one case required more than 2500 days for a project to be determined. The average determination times for wind projects in the past five years has been more than 1000 days".

The draft Wind Energy Planning Framework is open for comment until Friday 16 September 2016. Submissions can be made online via the Department of Planning and Environment website.

RELATED KNOWLEDGE

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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