Australia: NSW Solar Energy Planning Guideline released for consultation.

The Solar Guideline is not legally binding, but will guide the preparation of the Secretary's environmental assessment requirements.

The NSW Department of Planning and Environment has released a Large-Scale Solar Energy Guideline for public consultation. Consultation is open until 16 February 2018.

The Solar Guideline builds on the Department's Wind Energy Guideline, which was finalised in 2016, and demonstrates further commitment by the Government to the NSW Renewable Energy Action Plan, NSW Climate Change Policy Framework and the "aspirational" long-term objective of achieving net zero emissions by 2050.

In our view, the Solar Guideline does not represent a shift in policy, but a statement of the Department's approach to assessing large-scale solar energy development. The outcomes should be greater clarity for all stakeholders in the assessment and approval process, a more rapid assessment time and a greater success rate for solar projects.

Application of the Solar Guideline

Like the Wind Guideline, the Solar Guideline is aimed at both proponents and the community, and it applies to large-scale generation projects which are State significant development (SSD), that is, projects with a capital investment value of more than $30 million (or $10 million in an environmentally sensitive area).

It can also be used as general guidance for regulators, proponents and stakeholders in relation to smaller scale solar developments which need development consent.

The Solar Guideline is not legally binding. However, it will guide the preparation of the Secretary's environmental assessment requirements (SEARs), which direct the preparation of an EIS for major projects, and the Department's assessment of those projects under NSW planning laws.

The Solar Guideline will apply to all SSD solar projects going through the development application or modification process, where SEARs are issued after publication of the Solar Guideline.


The Solar Guideline has a number of objectives relating to the promotion of investment in better, sustainable, solar energy in NSW. However, it appears to have two key focus areas:

  • early and effective community engagement; and
  • strategic site selection.

Community engagement

Like the Wind Guideline, the Solar Guideline emphasises the importance of community consultation and seeks to "encourage earlier and more effective engagement with local communities and councils", as the Department's Frequently Asked Questions on the Large-Scale Solar Energy Guideline (FAQs) state. The Solar Guideline suggests that a project that takes into account early community feedback can develop a strong social licence.

The Solar Guideline recommends that community consultation starts from the site selection phase and continues through the scoping, EIS preparation and post-determination phases. Consultation should be undertaken with owners and occupiers of land directly required for the project and those in the vicinity of the project, as well as members of the local Aboriginal community, local organisations representing business, community, indigenous and environmental issues, local councils and stakeholders of other significant infrastructure nearby.

Strategic site selection

The Solar Guideline also emphasises the importance of strategic site selection. The FAQs summarise the Department's approach this way:

"Solar developments are not as constrained by geography and geology as other types of development (e.g. mines and wind turbines). This means that sites can be strategically selected to avoid or mitigate many assessment issues, such as biodiversity or visual impacts, or land use conflict. This can help to minimise impacts on the local community and/or the environment and, as such, provide an easier path through the assessment system."

This suggests that proponents will be encouraged to avoid impacts and community concerns through site selection.

Like the Wind Guideline, the Solar Guideline also outlines a flexible approach to detailed site layout:

"The Department may consider ... a flexible consent that allows changes in the placement of solar infrastructure within the development footprint ... without necessarily requiring further approval ... where the adverse environmental and social impacts and risks are not increased as a result of the changes".

Standard SEARs

The Solar Guideline refers to the Department's standard SEARs for solar energy. These have not been published with the draft Guideline. Not surprisingly, according to the Solar Guideline, the standard SEARs for solar energy SSD projects require consideration of:

  • biodiversity;
  • heritage;
  • land use compatibility;
  • visual impacts;
  • noise;
  • transport;
  • water;
  • hazards and risks; and
  • socio-economic impacts.

In addition, the Solar Guideline expresses the view that the requirement for consent authorities to consider "the public interest" (section 79C, Environmental Planning and Assessment Act 1979) in determining a development application or a modification application extends not only to social impacts and direct regional benefits and concerns, but also to the broader benefits of solar development, including environmental outcomes and Government commitments, such as the Paris Agreement and the NSW Government's 2050 net zero emissions objective.

The Solar Guideline includes an overview of national and international renewable energy policy, which we anticipate will be updated in the final version to refer to matters such as the Federal Government's proposed New Energy Guarantee and the outcome of COP23 in Bonn in November.

Making a submission

Submissions can be made online at until 16 February 2018.

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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